Miners Advocacy Council

Plain-English summary

The Miners Advocacy Council, an industry trade group for Alaska placer miners, sought an evidentiary hearing on eleven issues involving 31 similar NPDES permits issued by EPA Region X. The Environmental Appeals Board denied review of most issues, including mixing zones, arsenic monitoring, state certification, inspection and entry, spill-plan requirements, permit definitions, and sampling procedures. It granted review of whether the permits could authorize discharges from sluicing while excluding discharges from hydraulic removal of overburden, because the Board considered that a legal question about the integrated mining process. The Board set a briefing schedule and left the remaining issues denied.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 112.1, 122.41, 124.18, 124.53, 124.55, 124.74 through 124.76, 124.91, 125.3, 136, and 440.143, 440.148.
• Outcome: Review was granted on the hydraulic overburden-removal issue and denied on the other issues raised in the petition.
• Key point: The Board granted review to decide whether a permit writer may divide an integrated placer-mining process when setting discharge limits.

Full text (EPA EAB public release)

40 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF MINERS ADVOCACY COUNCIL
NPDES Appeal No. 91-23
ORDER DENYING REVIEW IN PART AND GRANTING
REVIEW IN PART
Decided May 29, 1992
Syllabus

In 1991, U.S. EPA Region X issued a set of virtually identical NPDES permits
to placer miners in Alaska. An industry trade group, the Miners Advocacy Council
(“MAC”) requested an evidentiary hearing on numerous conditions in the permit.
MAC now appeals the Regional Administrator’s decision to deny an evidentiary hearing
with respect to eleven of those issues.

Held: Review is granted on the issue of whether 40 CFR § 125.3, 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 and authorizing discharges from one part of that process (sluicing)
while not authorizing discharges from another part of that process (hydraulic removal
of overburden). This is a legal issue and hence not suitable for an evidentiary hearing.
It will be decided in accordance with the briefing schedule set forth in the order.
Review is denied on the other issues raised in the petition.

Before Environmental Appeals Judges Ronald L.
McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion of the Board by Judge Reich:

In 1991, U.S. EPA Region X issued a set of 31 virtually identical
NPDES permits to individual placer miners in Alaska. The Miners
Advocacy Council (“MAC”) requested an evidentiary hearing on nu-
merous provisions of the permits. MAC is not a permit holder but
rather is a trade association representing the affected industry. Pur-
suant to 40 CFR §124.75, the Regional Administrator denied an
evidentiary hearing on many of those provisions and MAC now seeks
review of the Regional Administrator’s denial. As requested by the
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MINERS ADVOCACY COUNCIL 41
Agency’s Chief Judicial Officer, the Region filed a response to MAC’s
petition for review.1
I. INTRODUCTION

Placers are alluvial or glacial deposits of loose gravel, sand, soil,
clay, or mud. To extract gold from placers, placer miners first remove
surface materials, such as vegetation, non-gold-bearing gravel, or-
ganic-rich frozen material, and ice (“overburden”). They then excavate
the gold-bearing material and typically place it in a sluice where
the ore is separated from the rest of the material.

In 1988, the Agency promulgated national effluent guidelines
for the gold placer mining industry at 40 CFR Part 440, Subpart
M. The guidelines require as the best available technology economi-
cally achievable (“BAT”) recirculation of all process water used in
the gold recovery process and the use of settling ponds. 40 CFR
§ 440.143 (1990). See also 53 Fed. Reg. 18772 (May 24, 1988) (pre-
amble to guidelines for gold placer mining industry). After water
has been used in the beneficiation process (separation of gold from
other materials), the water is channeled into a settling pond to allow
particulate matter to settle to the bottom. Recirculation of process
water is achieved by withdrawing from the settling pond water that
has already been used in the beneficiation process, using the water
in the beneficiation process again, and returning the process water
to the same settling pond afterwards. While the guidelines require
recirculation of all process water, they also recognize that stormwater
and groundwater will drain into the placer mine area, so that more
water will be in the system than can be recirculated in the
beneficiation process. This excess water will cause “incidental” dis-
charges. Id. For such discharges, the guidelines impose an effluent
limitation of 0.2 ml/l for settleable solids. Id. The guidelines also
impose certain best management practices. 40 CFR 440.148 (1990).

In accordance with the guidelines, the permits under consider-
ation here incorporate an effluent limitation of 0.2 ml/l for settleable
solids. They also contain effluent limitations of 0.05 mg/l for total
arsenic, and site-specific limitations for turbidity, which limitations
are required by state certification to ensure compliance with Alaska
water quality standards for those two pollutants. 18 AAC 70.20.

1At that time, the Agency’s Judicial Officers provided support to the Administrator
in his review of permit appeals. Subsequently, effective on March 1, 1992, the position
of Judicial Officer was abolished, and all cases pending before the Administrator,
including this case, were transferred to the Environmental Appeals Board. See 57
Fed. Reg. 5321 (Feb. 13, 1992).

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42 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
II. DISCUSSION

Under the rules governing this proceeding, there is no appeal
as of right from the Regional Administrator’s decision. Ordinarily
a petition for review is not granted unless the Regional Administra-
tor’s decision is clearly erroneous or involves an exercise of discretion
or policy that is important, and should therefore be reviewed by the
Environmental Appeals Board. See IT Corporation (Ascension
Parish Louisiana), NPDES Appeal No. 83-2 (July 21, 1983); Boston
Edison Company, NPDES Appeal No. 78-7 (August 28, 1978); E.L.
du Pont de Nemours & Company, NPDES Appeal No. 78-2 (March
16, 1978); 44 Fed. Reg. 32887 (Preamble to 40 CFR Part 124). The
petitioner has the burden of demonstrating that review should be
granted. See 40 CFR § 124.91(a) (1990).

MAC requested an evidentiary hearing on numerous conditions
in the permits. Some of those evidentiary hearing requests were
denied by the Regional Administrator. In its petition for review, MAC
argues that the Regional Administrator should have granted an evi-
dentiary hearing on the eleven issues discussed below.

Mixing Zones: As noted above, the national effluent guidelines
for gold placer mining impose a technology-based effluent limitation
for settleable solids. MAC argues that when the Region incorporated
this effluent limitation into the permit, it failed to take into account
mixing zones. MAC has apparently confused technology-based effluent
limitations with water quality standards. Water quality standards
apply after pollutants have been discharged into the water. A mixing
zone comes into play only when compliance with a water quality
standard is being determined. A mixing zone allows a person testing
the effluent’s effect on the receiving waters to collect samples down-
stream of the facility where some dilution of the effluent has oc-
curred. By contrast, technology-based effluent limitations, like the
one under consideration here, apply prior to or at the point of dis-
charge, thus precluding a person testing for compliance with a tech-
nology-based limitation from factoring in dilution when measuring
pollutant concentrations in the effluent. See 40 CFR § 125.3(e). Thus,
technology-based effluent limitations have nothing to do with mixing
zones.

In the brief supporting MAC’s Notice of Appeal, MAC refers
to an agreement between it and the Region, in which the Region
agreed to incorporate mixing zones provided by Alaska in amended
certifications. That agreement has no application to this issue since
State certifications relate only to water quality standards and not
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MINERS ADVOCACY COUNCIL 43
to technology-based effluent limitations. In light of these consider-
ations, we conclude that the Region was not required to consider
a mixing zone when it incorporated the technology-based effluent
limitation for settleable solids into the permit. Accordingly, review
of this issue is denied.

Turbidity: An Alaska water quality standard restricts the allow-
able level of turbidity in receiving waters attributable to placer min-
ing. 18 AAC 70.20. To meet this water quality standard, the permit
contains an effluent limitation which directly limits the turbidity
of the effluent as it leaves the mine-site and enters the receiving
waters. MAC argues that an effluent limitation that directly limits
turbidity is unnecessary because the limitation on settleable solids
will control turbidity sufficiently to meet the water quality standard.
This argument was raised and rejected recently in In re 539 Alaska
Placer Miners, more or less, and 415 Alaska Placer Miners, more
or less, NPDES Appeal No. 90-10, 90-11, at 13-14 (CJO, December
19, 1991), and MAC has presented no reason for departing from
that precedent. Accordingly, review of this issue is denied.

Monitoring for Arsenic: Part I(A)(2)(d) of the permit, governing
arsenic monitoring, requires that “[m]onitoring shall be conducted
in accordance with accepted analytical procedures (Standard Methods,
16th Edition, 1985).” Such procedures have been approved under
40 CFR Part 136. Part II.C. of the permit, however, authorizes the
use of monitoring procedures that have not been approved under
Part 136. Pursuant to Part II.C., the Region has attached to the
permit a sampling protocol governing the collection of arsenic sam-
ples, which has not been approved under Part 136. (AR 000446.)
Apparently assuming that Part I(A)(2)(d) applies to the entire mon-
itoring process, MAC argues that the two conditions are inconsistent.
We disagree. The two permit sections are not in conflict because
Part I(A)(2)(d) only prescribes how arsenic samples should be ana-
lyzed and where arsenic samples should be taken, while the sampling
protocol only prescribes how arsenic samples should be taken and
how they should be prepared for laboratory analysis. We note that
the rules give the Region discretion to deviate from procedures ap-
proved under Part 136.2 The Region has exercised that discretion

2 40 CFR § 122.41(j)(4) provides as follows:

Monitoring results must be conducted according to test procedures
approved under 40 CFR part 136 or, in the case of sludge use
or disposal, approved under 40 CFR part 136 unless otherwise
specified in 40 CFR part 503, unless other test procedures have
been specified in the permit.

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44 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
here by specifying procedures not approved under Part 136 with
respect to one part of the monitoring process, while adhering to
procedures approved under Part 136 with respect to the other part
of the monitoring process. Petitioners have not offered any reason
why the Region’s exercise of discretion in this case should be re-
viewed. Accordingly, review of this issue is denied.

In its Notice of Appeal, MAC also states that, with respect to
the arsenic limitation in the permits, “the question of whether or
not a background measurement is needed and whether or not a
mixing zone is authorized must be addressed.” In its brief supporting
the Notice of Appeal, however, MAC did not include any discussion
whatsoever on these issues. Accordingly, we conclude that MAC has
not met its burden of identifying a clear factual or legal error or
a policy consideration or exercise of discretion that warrants review.
Review of these issues is therefore denied.

Takings Clause: MAC argues that a permit requiring total recycle
is a taking of a valuable property right for which the permittee
must be compensated under the Fifth Amendment of the U.S. Con-
stitution. A similar challenge was made in the case of Rybachek
v. EPA, 904 F.2d 1276 (9th Cir. 1990). In its decision, the U.S.
Court of Appeals for the Ninth Circuit rejected the claim for two
reasons. First, the court concluded that no takings claim was ripe
because the Rybacheks had not claimed that a particular piece of
their property had been taken as a result of the promulgation of
national effluent guidelines for gold placer mining. Id. at 1300. Sec-
ond, the court concluded that a U.S. Court of Appeals was not the
appropriate forum for such a takings claim since Congress has speci-
fied that takings claims be brought in the United States Claims
Court or in certain cases the United States District Courts. Id. at
1300-01.

The Ninth Circuit’s reasoning in Rybachek as it applies to the
appropriate forum for takings claims would similarly apply to MAC’s
takings claim in this case. Any individual takings claim must be
brought in the U.S. Court of Claims or the United States District
Court. Section 124.91, governing NPDES permit appeals, does not
authorize the Environmental Appeals Board to entertain individual
takings claims. Accordingly, review of this issue is denied.

Stay of State Certification: The permit requires that reasonable
measures be taken to intercept and divert groundwater around the
plant-site. The language was required by State certification. Both
parties agree that the Commissioner of the Alaska Department of

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MINERS ADVOCACY COUNCIL 45
Environmental Conservation later stayed this requirement. MAC ar-
gues that, because the requirement has been stayed, it should be
removed from the placer mining permits. The Region responds that,
under 40 CFR § 124.55(b), the Region may not remove the condition
until the Region receives either a modified certification or a notice
of waiver from the State. The Region represents that it has received
neither of these. 40 CFR § 124.55(b) provides as follows:

If there is a change in the State law or regulation
upon which a certification is based, or if a court
of competent jurisdiction or appropriate State board
or agency stays, vacates, or remands a certification,
a State which has issued a certification under
§ 124.53 may issue a modified certification or notice
of waiver and forward it to EPA. If the modified
certification is received before final agency action on
the permit, the permit shall be consistent with the
more stringent conditions which are based upon
State law identified in such certification. If the cer-
tification or notice of waiver is received after final
agency action on the permit, the Regional Adminis-
trator may modify the permit on request of the per-
mittee only to the extent necessary to delete any
conditions based on a condition in a certification in-
validated by a court of competent jurisdiction or by
an appropriate State board or agency.

Whether the Region must receive a modified certification or notice
of waiver from the State before it may remove a state-certified condi-
tion from the permit is a legal issue that does not involve a genuine
issue of material fact. Accordingly, it is not suitable for an evidentiary
hearing. Nevertheless, we must still determine whether, as a legal
or policy matter, the issue should be reviewed.3 The language of

3 40 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 Administrator even of purely
legal issues involved in a permit decision to ensure that the Envi-

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46 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Section 124.55(b) clearly suggests that a mere stay of a certified
permit requirement does not authorize the Agency to remove that
requirement from the permit. To undo a State certification, Section
124.55(b) requires the Agency to wait until the State takes a second
step by forwarding a modified certification or notice of waiver to
the Agency. As a matter of policy, this provision makes sense because
the Agency should not undo a State certification unless it gets a
clear authorization from the State. Because the State did not forward
a notice of waiver or modified certification in this case, we conclude
that the Region was not clearly erroneous in refusing to remove
the certified condition from the permit. Accordingly, review of this
issue is denied.

Inspection and Entry Requirements: Section 122.41(i) of the
NPDES regulations contains inspection and entry requirements that
must be included in all NPDES permits. The permits at issue here
contain inspection and entry requirements identical to those required
in 40 CFR § 122.41(i). Section 122.41(i) essentially provides that the
permittee must allow the Region to inspect the facility “at reasonable
times.”

MAC is concerned that the inspection and entry provisions in the
permits will allow inspectors to visit a mine-site when no miners
are present. MAC believes that a miner should be present during
any inspection to ensure that the inspection is conducted in a safe
manner and in accordance with regulations issued by the Mine Safety
and Health Administration. MAC argues that it is not challenging
the regulation itself, but the manner in which the regulation has
been applied in the permit.

The Region responds that MAC has not preserved this issue
for review because, although it was raised during the comment pe-
riod, MAC did not request an evidentiary hearing on the issue. The
Region also argues that a challenge to the permit condition is tanta-
mount to a challenge to the regulation requiring its inclusion in
the permit. The Region points out that the time for challenging the
regulation has long since passed. The Region further asserts that
MAC’s real concern appears to be the manner in which the Region
might implement the permit condition in the future, and that such
concerns do not present an actual controversy ripe for review.

ronmental Appeals Board will have an opportunity to review any
permit before it will be final and subject to judicial review.

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MINERS ADVOCACY COUNCIL 47

We agree with the Region. A review of MAC’s evidentiary hearing
request reveals that MAC failed to request an evidentiary hearing
on the issue and thus failed to preserve the issue for appeal. See
40 CFR § 124.91(a) (authorizing appeals of initial decisions or denials
of hearing requests). Accordingly, review of this issue is denied.

Constitutionality of the Reporting Requirements: In its Notice of
Appeal, MAC lists as an issue on appeal whether the reporting re-
quirements in the permit constitute compulsory self-incrimination in
violation of the Fifth Amendment of the U.S. Constitution. In its
brief supporting the Notice of Appeal, however, there is no discussion
whatsoever concerning this issue. Under the rules governing this
appeal, this naked assertion that a permit provision violates the
Constitution is not sufficient to warrant review. We conclude that,
with respect to this issue, MAC has not carried its burden of identify-
ing a clear legal or factual error or an important policy matter or
exercise of discretion that should be reviewed. Accordingly, review
of this issue is denied.

Oil Spill Plan: The permit imposes the following requirement:

The operator shall maintain fuel handling and stor-
age facilities in a manner which will prevent the
discharge of fuel oil into the receiving waters or ad-
joining shoreline. A Spill Prevention Control and
Countermeasure Plan (SPCC Plan) shall be prepared
in accordance with provisions of 40 CFR Part 112
for facilities storing 600 gallons in a single container
above ground, 1320 gallons in the aggregate above
ground, or 42,000 gallons below ground.
In challenging this provision, MAC asserts that “since placer mining
is not a petroleum related industry”, it is inappropriate to apply
this provision to placer miners.

Section 112.1(b) applies to owners and operators of non-transpor-
tation-related onshore and offshore facilities engaged in “drilling, pro-
ducing, gathering, storing, processing, refining, transferring, distrib-
uting or consuming oil and oil products” which, due to their location
“could reasonably be expected to discharge oil in harmful quantities

• • • into or upon the navigable waters of the United States or
      adjoining shorelines.” Thus MAC’s assertion that placer mining is
      not “a petroleum related industry” does not directly address the appli-
      cability of § 112.1(b).

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48 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The permit requirement for an SPCC plan applies only to facili-
ties actually storing oil in quantities in excess of the exceptions
provided for in § 112.1(d)(2),4 and “storing” is an activity which can
trigger the applicability of § 112.1(b). Therefore, the application of
§ 112.1(b) to placer miners is appropriate if their facilities could rea-
sonably be expected to discharge oil in harmful quantities into or
upon the navigable waters of the United States or adjoining shore-
lines.

The Region, in responding to comments on the proposed permits,
concluded that “because most placer miners are located near rivers
or streams it is reasonable to expect that discharges of fuel could
enter waters of the United States.” Response to Comments Placer
Mining NPDES Permits 1991 at 6. MAC has not provided any infor-
mation challenging this conclusion.

We note that a determination that a facility could not reasonably
be expected to discharge oil into or upon navigable waters or adjoin-
ing shorelines must be made based on “the geographical, locational
aspects of the facility (such as proximity to navigable waters or ad-
joining shorelines, land contour, drainage, etc.)” 40 C.F.R.
§ 112(d)(1)(i). This is clearly a site-specific determination. Where, as
here, there is a reasonable basis for the SPCC-related permit provi-
sion, it is incumbent upon any person who believes that that provi-
sion is inapplicable to a particular site to challenge that provision
of that particular permit and make a demonstration consistent with
§ 112(d)(1)(i).5 We have no such challenge before us. Review of this
issue is therefore denied.

Definitions of Certain Permit Terms: MAC wants certain permit
terms defined in the permit, specifically: “waters of the United
States,” “reasonable steps,” “diversion,” “discharge,” “surface waters,”
and “groundwater.” The Region responds that MAC failed to preserve
this issue for review because it did not request or suggest such

4 As noted in footnote 7 of the Region’s response, there is a slight difference
between the regulations and the permit as applied to facilities precisely at the des-
ignated cut off points. For the reasons discussed in that footnote, we agree that
the permit is not defective on this account. EPA Response to Notice of Appeal and
Petition for Review by Miners Advocacy Council at 15.

5 As noted in a prior appeal, In the Matter of Kenneth H. Manning, NPDES
Appeal No. 87-19, at 4 (CJO, March 3, 1989), MAC’s participation in permit appeal
proceedings is not as a permit applicant; instead, it is a trade association which
presents views on issues of common interest to its membership. MAC’s general chal-
lenge to the permits does not substitute for challenges to individual permits where
the challenges require site-specific determinations. While MAC could attempt to make
such a site-specific demonstration, it has not attempted to do so in this case.

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MINERS ADVOCACY COUNCIL 49
definitions during the comment period and MAC has not shown good
cause for failing to raise them at that time. See 40 CFR § 124.76
(“No issues shall be raised by any party that were not submitted to
the administrative record required by § 124.18 as part of the prepa-
ration of and comment on a draft permit unless good cause is shown
for the failure to submit them.”). MAC contends that it did raise
them during the comment period by incorporating by reference the
comments it made during an earlier comment period for a different
set of placer mining permits issued in 1989. The Region, however,
contends that the definitions requested during the earlier comment
period were not for the same terms as those for which definitions
have been requested here. This assertion is not entirely correct. A
review of the file for the 1989 permit appeals discloses that Lela
Bouton requested a definition of “surface waters” during the comment
period for the 1989 permits. (Letter dated April 2, 1989 from Lela
Bouton to Joe Roberto, at 3.) Nevertheless, it does not appear that
the other terms for which definitions are now requested were raised
during the comment period for the 1989 permits, and in any event,
MAC has not offered any reasons why the Region’s failure to define
these terms constitutes a clear factual or legal error or involves
a policy consideration or exercise of discretion that warrants review.
Review of this issue is therefore denied.

Sampling Procedures: The permit contains sampling procedures
that were developed by the permit writer. MAC charges that these
procedures may not be placed in the permit because they are not
based upon a regulation or statutory provision. MAC apparently is
concerned that leaving such procedures to the discretion of the permit
writer might lead to abuses of that discretion. MAC does not, how-
ever, argue that the procedures at issue here are unreasonable or
inappropriate or that such discretion was otherwise abused in this
case. 40 CFR § 122.41(j) provides that the permit writer may deviate
from sampling procedures prescribed in the rules:

Monitoring results must be conducted according to
test procedures approved under 40 CFR part 136

• • • unless other test procedures have been specified
      in the permit.
      (Emphasis added.) This provision gives the Region a large measure
      of discretion in selecting test procedures. Accordingly, procedures are
      not invalid simply because they were developed by the permit writer
      in an exercise of discretion. An exercise of discretion, of course, could
      be challenged as unreasonable or inappropriate, but MAC has not
      raised such a challenge. Accordingly, review of this issue is denied.

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50 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Hydraulic Removal of Overburden: According to MAC, many min-
ers remove overburden hydraulically, i.e., with pressurized water.
Either stage of the mining process, sluicing or hydraulic removal
of overburden, could cause a discharge of pollutants into waters of
the United States. The permits issued to placer miners, however,
only authorize discharges caused during the sluicing phase of the
process. Part I(E)(3) of each placer mining permit specifically provides
that discharges from hydraulic removal of overburden are not author-
ized under the permit. MAC challenges this condition as an unreason-
able prohibition of hydraulic removal of overburden in violation of
40 CFR § 125.3.

Section 125.3(c)(3) provides that, [w]here promul-
gated effluent limitations guidelines only apply to
certain aspects of the discharger’s operation, or to
certain pollutants, other aspects or activities are sub-
ject to regulation on a case-by-case basis in order
to carry out the provisions of the Act.
In this case, the sluicing process is covered by the national effluent
guidelines for gold placer mining, but hydraulic removal of overbur-
den is not covered. See Rybachek v. EPA, 904 F.2d 1276, 1298 (9th
Cir. 1990). Thus, discharges resulting from hydraulic removal of over-
burden must be regulated through permit limitations that are estab-
lished on a case-by-case basis. Id. Under Section 125.3(c)(2), when
setting effluent limitations for activities or processes that are not
covered by national effluent guidelines, the permit writer must apply
the appropriate factors listed in Section 125.3(d). Section 125.3(d),
in turn, provides that, in setting BPT and BAT limitations on a
case-by-case basis pursuant to § 125.3(c), the permit writer must con-
sider, inter alia, the “process employed.” 40 CFR §§ 125.3(d)(1)(ii)
and 125.3(d)(3)(iii).

MAC contends that the Region violated Section 125.3 by not
authorizing discharges caused by hydraulic removal of overburden,
since that method is the “process employed” by many placer miners.
The Region responds that, under the permit, a miner is free to use
hydraulic removal of overburden to uncover ore-bearing material as
long as it recycles all water used for that purpose, so that none
of it causes a discharge of pollutants into waters of the United States.
The Region states that, if miners cannot totally recycle the water
used in hydraulic removal of overburden, they must obtain a separate
permit for discharges of pollutants into waters of the United States
caused by that activity.

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MINERS ADVOCACY COUNCIL 51
Whether the permits issued to placer miners who use hydraulic
removal of overburden should authorize and set limitations for dis-
charges caused by that activity is a legal issue that does not involve
a genuine issue of material fact. Hence, it would not be suitable
for an evidentiary hearing. Nevertheless, we must still determine
whether, as a legal or policy matter, the issue should be reviewed.
In the fact sheet for the 1989 placer mining permits, the Agency
describes overburden removal as one of the “[e]ssential components”
of placer mining. (Fact Sheet for 1989 Permits, at 2.) If removal
of overburden is an essential component of placer mining, the ques-
tion arises whether it is permissible for the Agency to divide up
the integrated placer mining process and authorize discharges from
only one part of the process, while specifically declining to authorize
discharges from another part of the process. We conclude that review
should be granted on this issue to further explore this question.
A briefing schedule is set out in the conclusion below.
III. CONCLUSION
In sum, we conclude that one of the issues raised in MAC’s
appeal should be reviewed. This issue relates to the hydraulic re-
moval of overburden.
Section 124.91(g), 57 Fed. Reg. 5337 (Feb. 13, 1992), governing
NPDES permit appeals, provides that:
[t]he petitioner may file a brief in support of the
petition within 21 days after the Environmental Ap-
peal Board has granted a petition for review. Any
other party may file a responsive brief within 21
days of service of the petitioner’s brief. The petitioner
then may file a reply brief within 14 days of service
of the responsive brief.
MAC is hereby invited to file a brief on the issue for which review
has been granted in the foregoing discussion. The brief must be
filed by June 22, 1992. The Region may then file a responsive brief
and MAC may file a reply brief in accordance with the schedule
provided in § 124.91(g). As for the rest of the issues raised by MAC,
review is denied.
So ordered.
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