# Petition for Writ of Certiorari — Miners Advocacy Council, Inc. v. Alaska Department of Environmental Conservation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0820%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1077 ## Text \ (1) $Y i 0 U 3 a | Supreme Guurt, U.S, FILED No. 89-__ EC 14 RS JOSEPH F. SPANIOL, JR. In The EK Supreme Court of the United States October Term, 1989 ,% 4 MINERS ADVOCACY COUNCIL, INC., Petitioner, THE STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL CONSERVATION; DENNIS D. KELSO, COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; TRUSTEES FOR ALASKA; and NORTHERN ALASKA ENVIRONMENTAL CENTER, Respondents. -% 4 PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA ,% — Rosert JOHN # . WILLIAM R. SATTERBERG, JR. * Law Orrices OF WILLIAM R. SATTERBERG, JR. 709 Fourth Avenue Fairbanks, Alaska 99701 (907) 452-4454 #Of Counsel *Counsel of Record COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED FOR REVIEW (1) May the State of Alaska, through the National Pollution Discharge Elimination System (NPDES) permit certification process, simultaneously insert the same water quality based effluent limitation in several hundred permits, or must the State instead certify NPDES permits and insert water quality based effluent limitations on an individual, case-by-case basis? (2) Did the State of Alaska waive its right to certify by failing to certify within the 60-day period prescribed by law? (3) When the United States Environmental Protec- tion Agency (EPA) proposes to modify particular terms of an NPDES permit, may the State of Alaska via the certi- fication process modify different NPDES permit terms which the EPA-proposed permit modification did not even purport to affect? (4) Did the State of Alaska’s certification of the same water quality based effluent limitation for several! hundred permits, in disregard of whether such a strin- gent limitation is necessary to meet State water quality standards in individual cases, effect a taking of property in violation of the Fifth and Fourteenth Amendments? il TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW........... TABLE OF CONTIN... ii TASLE OF AUTHGRTEe....os. as V OPINION MRLAWW ios. tee 1 JURISDICTION OF THE COURT................... 1 CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED .................005. 1 STATEMENT OF THE CAGE? nse ees 2 REASONS FOR GRANTING THE WRIT ........... 13 I. THE STATE MUST CERTIFY WATER QUAL- ITY BASED EFFLUENT LIMITATIONS ON AN INDIVIDUAL, CASE-BY-CASE BASIS.. 14 II. BY FAILING TO CERTIFY WITHIN THE 60- DAY PERIOD PRESCRIBED BY LAW, THE STATE WAIVED ANY RIGHT TO CERTIFY THE NPURES PRRMIIED «once ccecnaticsscss: 18 Ill. THE STATE ILLEGALLY INSERTED THE 0.2ML/L SETTLEABLE SOLIDS EFFLUENT LIMITATION IN THE 446 NPDES PERMITS WHICH EPA PROPOSED TO MODIFY ONLY WITH RESPECT TO TURBIDITY AND) ARINC 6 os00655sn5cuue eee ee 21 be on Re On eh ct MOE palidoes ili TABLE OF CONTENTS - Continued Page IV. THE STATE EFFECTED A TAKING OF PRI- VATE PROPERTY IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS BY CERTIFYING THE SAME WATER QUAL- ITY BASED EFFLUENT LIMITATION FOR SEVERAL HUNDRED PERMITS WITHOUT DEMONSTRATING THAT SUCH A STRIN- GENT LIMITATION IS NECESSARY TO MEET STATE WATER QUALITY STAN- DARDS IN EACH INDIVIDUAL CASE .... 22 eas is ok wa xs Givens hs catory Hearing (Excerpt).. App. 147 APPENDIX O - Constitutional Provisions, Statutes, and Regulations App. 148 RL a ke oo, cee TABLE OF AUTHORITIES Cases Armstrong v. United States, 364 U.S. 40 (1960)........ 23 Best v. Humboldt Mining Co., 371 U.S. 334 (1963)..... 22 Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980), rehearing denied, 446 U.S. 947 (1980)........ 21 Dobbins v. City of Los Angeles, 195 U.S. 223 (1904) .... 27 Environmental Defense Fund v. Alexander, 501 F.Supp. 742 (N.D. Miss. 1980), affirmed in part, reversed in part on other grounds, 651 F.2d 983 (5th Cir. 1981), on remand, 554 F.Supp. 451 (N.D. PE Sas FR es Woewanetes poke eeveda Nea Shc 19 E.P.A. v. California ex rel. State Water Resources Control Board, 426 U.S. 200 (1976)................. 16 Hallstrom v. Tillamook County, ___ U.S. ___, 58 US. a nat oe ae he ere ee Ca 20 Homestake Mining Co. v. United States Envtl. Protec- tion Agency, 477 F.Supp. 1279 (D.S.D. 1979)........ 10 ].E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 432 ee gnc lvicn ccc nek maka eaee er eees 26 Lake Erie Alliance v. U.S. Corps of Engineers, 526 F.Supp. 1063 (W.D.Pa. 1981), affirmed 707 F.2d 1392 (3rd Cir. 1983), cert. denied., 464 U.S. 915 SUING Wiad s Spckace Nn bo eee cn ee es ORE PET OLAS 12 Lawten ©. Stecke, 132 US. 133 (IGP)... os ess was. 28 Leo Sheep Co. v. United States, 440 U.S. 668 (1979) .... 18 Marathon Oil Co. v. E.P.A., 830 F.2d 1346 (5th Cir. Ds nu vbe cx ha kes cee we ca ese ee 12, 14, 16, 20, 27 vi TABLE OF AUTHORITIES - Continued Natural Resources Defense Council v. E.P.A., 273 U.S.App. D.C. 240, 859 F.2d 156 (1988)......... Nollan v. California Coastal Commission, 483 US. MN RE rere re roe 24, Penn Central Transportation Co. v. City of New York, COD UE re Re ons o's cadveasenauseseseets- Pennell v. City of San Jose, __ U.S. __, 108 S.Ct. SOD, FS RBA FT CGI aos a icles vaccssscnses Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .. Roosevelt Campobello International Park Commission v. E.P.A., 684 F.2d 1041 (1st Cir. 1982).......... Seacoast Anti-Pollution League v. Costle, 527 F.2d 872 (1st Cir. 1978), cert. denied, 439 U.S. 824 (IGF ED oc cc ccccctacasbUiieseks sesh eeeeeteeRnernis Town of Sutton v. Water Supply and Pollution Control Commission, 116 N.H. 154, 355 A.2d 867 (1976)... Trustees for Alaska v. E.P.A., 749 F.2d 549 (9th Cir. BOE). on vccibnce cnet biseees SesencuePeeeee ces Union Oil Co. v. Smith, 249 U.S. 337 (1919)....... United States v. Coleman, 390 U.S. 599 (1968)...... ‘United States v. Florida East Coast Railway Co., 410 UG. 208 CET «5 cvnnedhuesditasnisakeceses tees United States v. Locke, 471 U.S. 84 (1985) ......... United States v. Riverside Bayview Homes, Inc., 474 SS. “SSE - CRO oan inc sewiscusdayeceieeassavent 26, 27 ee cae eS ee ae OR, - Vii TABLE OF AUTHORITIES - Continued Page CONSTITUTIONAL PROVISIONS The United States Constitution, Amendment V....1, 22 The United States Constitution, Amendment XIV, ERG shaw seek cheek ebNs- te. Ebina eee che oh ee keccl 1, 22 STATUTES AND REGULATIONS United States Code ee os 5 cance uéake snaped es kame pe as 1 sd. 4 6 o4.ece wwenes sanemm ae 26 ee ao Stace ewe vuaseudaceWeeeen 3 BF Wie MEEPS ow sv onc cn cccsccucnsnseeacns 1, 17 on 0 04 no040s sense keene ean 13 EA a i ain 5 5 50-4 wd aka 0 84s wed 6 aoe bee 1 er NN IE os coc cksnnscctecoeesescies 3, 4, 19 ee a nn cn andcccaseacaedesnedswoaw ae 4 ee IID 50s csc canseccvewusecccctccunee 3 EE ere a eer 2,3 RE Sn Ce rT ro 13 Code of Federal Regulations pot ek | ree 2, 8, 14 Co renee ys ee KE | errr a Sp Gee, ee CUPEE 6 5 ov S vee secececaecees 3. 19 viii TABLE OF AUTHORITIES - Continued Page SD CRE, Be Be hia ha ieee see es cee es 4, 19 40 C.F.R. §124.53(eX2) (1985)... 2.2.2... eee eee ee. 4 40 C.F.R. §124.53(e)(3) (1985)............ 4, 9, 14, 15, 26 CD Ce SD GUND ove dciccssscuccsnesieces re RULES Supreme Court Rule 17.1(b)-(c) .................-45. 13 RE GE GD EO 665 co ce dcnsinsestcewess 1 Lecistative History House Report No. 92-911 (March 11, 1972)...18, 19, 20 FEDERAL REGISTER Oe Fee I I wis hands ce ead w eee iwcuceecnanecen 19 OP Pe EN, IES oso nccacnuecwscessscbenetunen 15, 19 OPINION BELOW The decision of the Alaska Supreme Court is offi- cially reported beginning at 778 P.2d 1126. A copy of the opinion is set forth in Appendix A. (App. 1-31) | JURISDICTION OF THE COURT The Alaska Supreme Court rendered its decision in this case on July 28, 1989. Petitioner Miners Advocacy Council, Inc. (MAC) filed a timely petition for rehearing (App. 72-88), which was denied in part on September 7, 1989, and in final on September 15, 1989. (App. 68-71) Since Petitioner claimed and asserted rights under the Constitution and statutes of the United States, this Court has jurisdiction under 28 U.S.C. § 1257(a) to review by writ of certiorari the decision of the Alaska Supreme Court. , _ CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED This case involves the following constitutional provi- sions, statutes, and regulations. Since the provisions are lengthy, pursuant to Supreme Court Rule 21.1(f), their pertinent text is set forth in Appendix O (App. 148-65): The United States Constitution, Amendment V; The United States Constitution, Amendment XIV, § 1; 33 U.S.C. § 1311(b)(1)(c); 33 U.S.C. § 1341; 33 U.S.C. § 1342(a)-(c); 40 C.F.R. § 121.2(a)(2)-(3) (1985); 40 C.RR. § 122.62 (1985); 40 C.ER. § 124.53 (1985); 40 C.RR. § 124.55(b) (1985). sa - STATEMENT OF THE CASE This case concerns the fate and livelihood of several hundred gold miners in Alaska. While their gold mining operations come in all shapes and sizes, the vast majority of these miners are individuals or families, some of whom trace their pursuit of this honest occupation back_to the turn of the century. Since the imposition of the stringent conditions at issue in this case, these souls have seen their numbers decrease dramatically. 778 P.2d at 1130 n.7. (App. 6-7) Placer mining in essence involves the labor of gather- ing from the earth small particles of that precious metal known as gold. This is accomplished through placing gold-bearing material, called “pay dirt,” in a channeled- box known as a “sluice.” By then running water through the sluice, the miner, through the force of gravity, gathers the heavier particles, including gold, which collect in the sluice on small underwater barriers known as “riffles.” What goes in must come out, and after the pay dirt is sluiced, it is discharged and captured by the miner, usu- ally in a self-built settling pond. (App. 19) It is post- capture discharge or “effluent” which subjects a miner to the terms of the Clean Water Act. wont ne ee ae a Oe ee Both the land and the waters of Alaska are such that they frequently contain naturally high levels of inert, undissolved arsenic. Accordingly, when the earth is washed through the miner’s sluice, it is natural for the level in the receiving water to be increased somewhat by the effluent. The same holds true for settleable solids, which are heavier, quickly-settling sediments, and for turbidity, which is not a pollutant but merely a measure- ment of the cloudiness of the water. (App. 135-36) Under Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, any person wishing to discharge pollutants into the waters of the United States must secure an NPDES permit from either EPA or the source State, depending on whether EPA has retained or delegated to the State the permitting authority. 33 U.S.C. § 1342(a)-(c). EPA has not delegated NPDES permitting authority to the State of Alaska. Accordingly, while EPA is thus respons- ible for issuing NPDES permits in Alaska, before EPA may issue a permit, EPA must provide the State with an opportunity to review the proposed permit to determine whether the permit’s terms will meet the State’s water quality standards. 33 U.S.C. § 1341(a)-(b). This process is known as “certification.” Id. Once a State has been presented with a certification opportunity, the State has three options. The State may deny certification of an NPDES permit, thus precluding EPA from issuing the permit. 33 U.S.C. § 1341(a)(1). In addition, the State may waive certification, either expressly or by failing to render its certification decision within the 60-day period prescribed by law. Id.; 40 C.F.R. § 124.53(c)(3), (d) (1985).! Third, the State may elect to certify the NPDES permit. 33 U.S.C. § 1341(a)(1). If the State does certify an NPDES permit, the State may specify conditions more stringent than those in the draft permit which are necessary to meet State water quality standards, and must include for each such condi- tion the CWA or State law reference upon which that condition is based. 33 U.S.C. § 1341(a)(2); 40 C.F.R. § 124.53(e)(2). On the other hand, a certifying State is also required to provide a “statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of State law, including water quality standards.” 40 C.F.R. § 124.53(e)(3). With the above background in mind, Peti- tioner will turn to the facts of this case. In 1984, EPA provided the State of Alaska Depart- ment of Environmental Conservation (DEC) with the opportunity to certify 446 NPDES permits to be issued to placer gold miners in Alaska. At the time, DEC expressly waived any right to certify the 446 permits. (App. 53, 55) Accordingly, the 446 placer miners received their NPDES permits which included, inter alia, a 0.7ml/1 monthly average and 1.5ml/1 instantaneous maximum e.{luent limitation for settleable solids. (App. 81, 91, 95) Subsequent to the State’s waiver of certification and the issuance of the 1984 permits, the United States Court of Appeals rendered its decision in Trustees for Alaska v. E.P.A., 749 F.2d 549 (9th Cir. 1984). This decision held that ' Unless specified otherwise, all future references to the Code of Federal Regulations will refer to the 1985 C.F.R. as in effect during the State’s 1985 certification. The relevant 1985 C.F.R. provisions have remained the same through their 1989 codification. — ee water quality standards, which are goals that must be met for a given body of water, are not themselves proper NPDES permit terms; rather, such water quality stan- dards need to be translated into particular effluent limita- tions applicable to an individual discharger. Id. at 556-57. Thus, the Ninth Circuit held that EPA erred by not requir- ing an effluent limitation for turbidity and not providing a public hearing on the question of effluent limitations for arsenic and mercury. Id. at 557, 561. The court then remanded the case to the EPA to determine what, if any, effluent limitations were necessary to meet the State water quality standards for turbidity, arsenic, and mer- cury. Id. In response to the Ninth Circuit’s decision, EPA on January 31, 1985, gave notice to the 446 permittees that EPA was proposing to modify their 1984 NPDES permits to include effluent limitations for turbidity and arsenic. (App. 101-06) On the same date, EPA notified the State of Alaska DEC of the proposed modifications. EPA also provided DEC with copies of the draft permit with its proposed modifications and informed DEC that the 60- day period for State certification action was thereby com- mencing and that the “State will be deemed to have waived its right unless that right is exercised within 60 days of receipt of this letter.” (App. 89-94) The various notices of the proposed modification nowhere indicated that the settleable solids limitation was subject to mod- ification, and consistent with EPA’s notice that it pro- posed to modify the 446 permits with respect to turbidity and arsenic, the proposed modifications which EPA sent to DEC for certification did not alter the settleable solids limitation, which remained at the 0.7/1.5 level. (App. 91) With respect to State certification, the proposed modifica- tion referred exclusively to limitations for turbidity and arsenic. (App. 100) Pursuant to the notice sent out by EPA, EPA and the State DEC held joint hearings on the proposed modifica- tion of the 446 existing NPDES permits and to issue 93 new permits for placer mining operations in the State, a total of 539 individual NPDES permits. (App. 46) Based on the notification that turbidity and arsenic were the only conditions being modified, Petitioner MAC mem- bers submitted comments only in regards to those and not any other permit conditions. (App. 81) Only after EPA and DEC held their two public hearings on the permits, did DEC publicly announce that it intended to modify the settleable solids limitation in the 446 permits and certify a settleable solids limitation of 0.2m1/1. (App. 47) The 60-day period in which the State was to have certified came and went. Finally, on April 29, 1985, 88 days after EPA initiated the certification, DEC certified en masse the 539 NPDES permits and inserted in each and every one of the permits a settleable solids effluent lim- itation of 0.2ml1/1. (App. 115-16) As authority for certify- ing a settleable solids effluent of 0.2ml/I, the State referred to a State water quality standard which did not even provide for settleable solids until nearly two months after the State certified the settleable solids effluent. (App. 58-59, 73-74, 77-79, 82-83, 108) Moreover, the certi- fication failed to indicate the degree to which the settle- able solids limitation or any other limitations could be made less stringent and still comply with State water quality standards. (App. 115-16) In retrospect, this is not surprising since, “DEC readily admits that it neither per- formed site-specific evaluations nor considered informa- tion contained within individual NPDES applications in its certification process.” 778 P.2d at 1131 (footnote omit- ted). (App. 8) On May 6, 1985, Petitioner MAC, an association of numerous placer miners who have been directly affected by the actions of the State in certifying en masse the 539 NPDES permits, filed suit in the Alaska Superior Court, seeking injunctive relief on several grounds. 778 P.2d at 1130. (App. 6, 37) Among these grounds were: that the State had illegally conducted a mass certification instead of certifying on an individual, case-by-case basis as required by law; that the State had waived any right to certify the permits by failing to certify within the 60-day period prescribed by law; that the inclusion of the 0.2m1/1 settleable solids effluent in each of the 539 permits was done without proper notice and hearing and violated the procedural due process rights of the permittees; and that the 0.2m1/1 solids effluent is overly stringent and arbi- trary so as to effect a taking of property in violation of the Fifth and Fourteenth Amendments. Also subsequent to the State’s certification, a number of parties, including Petitioner and several individual miners, filed timely requests with DEC for an administra- tive adjudication of the certification. These requests were granted and the matters were consolidated. In addition, Respondents Trustees for Alaska (TFA) and Northern Alaska Environmental Center (NAEC) intervened in Peti- tioner’s superior court suit. The superior court continued its proceedings and retained jurisdiction pending a ruling by the DEC Deciding Officer. 778 P.2d at 1130. (App. 6) During the administrative hearing, Petitioner renewed the arguments made in support of its complaint for injunctive relief. (App. 117-19) At the adjudicatory hearing itself, many miners were afraid to or prohibited from testifying due to pending or threatened EPA enforcement actions. (App. 147) After the hearing, the Deciding Officer upheld DEC’s certification. In short, the Deciding Officer ruled that DEC was not required to certify on a site-specific, case-by-case basis and could legally certify on a mass basis; that while the State did indeed certify in an untimely manner, well outside the 60- day limit, arguments as to the State’s waiver of any right to certify should be made to EPA and not in the State adjudicatory system; that DEC gave proper public notice and held proper public hearings so as to allow DEC to certify the 0.2m1/1 settleable solids effluent limitation in each of the 539 NPDES permits; and that the 0.2m1/1 limitation was not overly stringent and arbitrary. (App. 52-62) Petitioner appealed the administrative decision to the superior court, raising again the issues presented in this Petition. (App. 120-23) The superior court in essence echoed the Deciding Officer’s conclusions and affirmed the administrative decision. (App. 37-43) Petitioner then appealed to the Alaska Supreme Court on August 28, 1987. (App. 124-25) After a lengthy period, the Alaska Supreme Court rendered its decision. With respect to Petitioner’s contention that the State is required to certify NPDES permits on an individual, site-specific basis rather than en masse, the Alaska Supreme Court first examined the various regulations governing State certification of federal licenses and per- mits. The court took particular note of 40 C.F.R. Puerco § 121.2(a)(2) which requires the certifying agency to pro- vide a statement that the agency has either examined the permittee’s application made to the federal permitting agency and bases its certification upon water quality related information contained in the application, or has examined other information furnished by the permittee so as to allow the certifying agency to state with reason- able assurance that the permit’s terms will comply with State water quality standards. 778 P.2d at 1132. (App. 10-11) In addition, the court took note of 40 C.FR. § 124.53(e)(3) which requires that the State’s certification of an NPDES permit be in writing and include a “state- ment of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of State law, including water quality stan- dards.” See 778 P.2d at 1132. (App. 11-12) Despite the above C.F.R. provisions, the court concluded that the Clean Water Act does not require States to certify NPDES permits on an individual, case-by-case basis: These provisions, particularly the require- ments of 40 C.FR. § 121.2(a)(2), indicate that site-specific matters may be important consider- ations in the certification process. However, we do not believe that the federal regulations implementing the Clean Water Act can be read to require states to certify draft NPDES permits on a case-by-case basis. Id. (App. 12) Beyond providing for reasonable assurance that individual permittees will comply with State water quality standards, the regulations were viewed by the court as being “virtually silent as to what procedures states should employ in certifying draft NPDES permits.” Id. at 1132-33. (App. 12) 10 The Alaska Supreme Court also considered, but dis- missed summarily, the observation of a federal district court that water quality based effluent limitations must be based upon site-specific examination of the pertinent water body: No reported cases have considered whether states must certify NPDES permits on an indi- vidual rather than a group basis, although a federal district court has noted in dictum that “effluent limitations are established by individ- ual examination of the waterway.” Homestake Mining Co. v. United States Envtl. Protection Agency, 477 F.Supp. 1279, 1286 (D.S.D. 1979) (court paraphrasing an EPA General Counsel’s decision). 778 P.2d at 1133. (App. 13) The Homestake court’s observa- tion was discussed no further. Yet, consistent with the Homestake decision, the Alaska Supreme Court added that “Alaska water quality standards apply to individual dis- chargers, not to industries or groups considered as a whole.” 778 P.2d at 1133 n.11 (emphasis added). (App. 14) In the end, the Alaska Supreme Court based its con- clusion upon general statements contained in the legisla- tive history of the Clean Water Act. The court reasoned that since the legislative history of the Act suggests that States are to play a large role in regulating potential polluters and since (in the court’s view) “the Clean Water Act and its implementing regulations[] lack . . . specific requirements governing states’ NPDES certification pro- cedures,” the Alaska DEC was not required to certify the NPDES permits on an individual, case-by-case basis and could instead certify the permits on a group basis. 778 11 P.2d at 1133-34. (App. 14-15) The court added that the mass certification was thus reasonable since it might be difficult for DEC to conduct the requisite site-specific evaluations. 778 P.2d at 1134 n.11. (App. 15) With respect to Petitioner’s argument that by failing to certify within the 60-day period prescribed by law, the State had waived any right it had to certify (App. 129-32), the Alaska Supreme Court did little more than take note of the fact that the State could waive its right to certify, in which case “the NPDES permits are issued as originally proposed by EPA.” 778 P.2d at 1129, 1135 (citing the 60- day waiver requirement). (App. 3, 17-18) Petitioner’s waiver argument was then disposed of by the court at the end of its opinion. “We have reviewed all of the remain- ing specifications of errors which have been advanced by TFA, NAEC, and MAC and have concluded that they are without merit.” 778 P.2d at 1140. (App. 31) Petitioner’s argument that the State had modified the settleable solids effluent in the 446 NPDES permits without the notice and hearing required by law (App. 127-28, 132), suffered a similar fate. With respect to Petitioner’s argument that the 0.2m1/1 settleable solids effluent was overly stringent and arbitrary so as to effect a taking of property (App. 133-36), the Alaska Supreme Court noted Petitioner’s contention. 778 P.2d at 1135. (App. 19) The court, how- ever, gave the argument short shrift and concluded that in view of the facts and circumstances, the 0.2m1/1 limita- tion was a reasonable exercise of the State’s regulatory power. 778 P.2d at 1135-37. (App. 18-23) 12 As pointed out to the Alaska Supreme Court on petition for rehearing, in the aftermath of the mass certi- fication, Petitioner MAC members and other miners have endured a host of problems, both administratively and in the court system. (App. 74-75, 81-82, 84-88) Since EPA is but an “interested observer” of the certification process, Marathon Oil Co. v. E.P.A., 830 F.2d 1346, 1351 (Sth Cir. 1987), and since absent the required State statements, EPA has no authority to determine whether the limitations certified by the State are more stringent than required to meet State water quality standards, Roosevelt Campobello International Park Commission v. E.P.A., 684 F.2d 1041, 1056 (1st Cir. 1982); Lake Erie Alliance v. U.S. Corps of Engineers, 526 FSupp. 1063, 1074 (W.D.Pa. 1981), affirmed 707 F.2d 1392 (3rd Cir. 1983), cert. denied, 464 U.S. 915 (1983), when miners have attempted to obtain EPA evidentiary hear- ings on the extent to which their effluent limits could be relaxed as to settleable solids, turbidity, and arsenic, the miners have struck a brick wall. (App. 142-43) These ongoing evidentiary hearings are presently pending before EPA (App. 82, 85-88), and their result is directly contingent upon the validity or invalidity of the State’s certification. 40 C.F.R. § 124.55(b). Moreover, the State’s mass certification practice shows no signs of stopping. 778 P.2d at 1130 n.7. (App. 6-7) As noted, the State’s mass certification has also resulted in numerous miners being brought before the federal district court. (App. 81-82, 84-85) In one suit in particular, EPA has charged one miner and her husband, who have mined together for nearly 30 years, with numerous violations of their 1985 NPDES permit, all but one of which relates to the 0.2m1/1 settleable solids efflu- ent limitation incorporated into their modified permit as a result of State certification. (App. 81-82) 13 As such, the two (both MAC members), and other miners as well, face the exaction of severe penalties, civil, crimi- nal and administrative, as a result of the State’s illegal certification. See 33 U.S.C. §§ 1319, 1365. sé. 7 REASONS FOR GRANTING THE WRIT Petitioner submits that the Alaska Supreme Court has decided significant federal questions in a way which is in direct conflict not only with the decisions of various federal courts of appeal, but also with applicable deci- sions of this Court. Even if these conflicts did not exist, the Alaska Supreme Court has decided important ques- tions of federal law concerning the scope and administra- tion of a major environmental statute and the relation between the statute and the property and liberty rights of individuals. Given the broad applicability of the Clean Water Act, with tens of thousands of NPDES permits being issued nationwide, if Alaska remains unchecked in its error, the practice of mass certification and the inclu- sion of overly-stringent water quality based effluent lim- itations in NPDES permits is bound to work its way south, if it has not already. Moreover, in the wake of the State’s certification, the number of miners in Alaska has decreased dramatically. The potential for such economic dislocations spreading elsewhere in the Nation militates strongly in favor of this Court’s checking the State’s practice in its incipient stage. Under Supreme Court Rule 17.1(b)-(c), these special and important reasons well war- rant this Court’s granting review via writ of certiorari. Petitioner will address these reasons concisely below. 14 I. THE STATE MUST CERTIFY WATER QUAL- ITY BASED EFFLUENT LIMITATIONS ON AN INDIVIDUAL, CASE-BY-CASE BASIS. Initially, Petitioner submits that the Alaska Supreme Court is simply wrong in its conclusion that the Clean Water Act and its implementing regulations do not require individual, case-by-case consideration when the State is certifying an NPDES permit. 40 C.F.R. § 121.2(a)(2) specifically requires individual, site-specific consideration of an NPDES permittee’s application. Fur- thermore, it is difficult to imagine how the State can provide the statement required by 40 C.F.R. § 124.53(e)(3), a “statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of State law, including water quality standards,” without giving individual consideration to a permittee’s application. In Marathon Oil, supra, the Fifth Circuit specifically criticized the Alaska DEC’s misunderstanding of 40 C.F.R. § 124.53(e)(3), and pointed out DEC’s error. In that case DEC, oddly enough, certified an NPDES permit indi- vidually, on a very site-specific basis. See 830 F.2d at 1349-53. During the course of its opinion, the Court of Appeals on several occasions noted that DEC labored under the erroneous view that it could not specify condi- tions less stringent than those contained in the draft permit. Jd. at 1351 & n.26, 1352 & n.35, 1353. Yet, in a schizophrenic burst DEC did include in its certification a boiler plate § 124.53(e)(3) statement that the draft permit “cannot be made less stringent without violating the require- ments of Alaska state law and regulations including Alaska 15 water quality standards.” 830 F.2d at 1353 (quoting DEC’s cover letter accompanying its Certificate of Reasonable Assurance) (emphasis supplied by the court). When EPA promulgated 40 C.FR. § 124.53(e)(3), the Administrator explained the purpose of the provision and that it does indeed mean what it says: Some problems have resulted from the prac- tice of certifying draft permits, which practice has arisen from the practical difficulties of certi- fying applications. In particular, certifications have not always clearly stated exactly what con- ditions are necessary to comply with State law and whether less stringent conditions would also satisfy State law. The final regulations rem- edy these problems by requiring States to set forth in all cases the minimum terms and condi- tions which will be necessary to comply with applicable law. For example, if a State certifies a permit with an effluent limitation imposing a daily maximum BOD of 25mg/I, it will be required to identify also a ceiling representing the minimum level of contrel, such as 30mg/1 or 40mg/1, which the State finds necessary to com- ply with State law. 44 Fed. Reg. 32880 (emphasis added). EPA recognized the burden this procedure places upon States, but found any alternative to be unacceptable. /d. The State of Alaska’s mass certification of NPDES permits is directly contrary to the Clean Water Act’s conception of the NPDES permitting process as one involving individual, adjudicatory determinations. In Sea- coast Anti-Pollution League v. Costle, 527 F.2d 872 (1st Cir. 1978), cert. denied, 439 U.S. 824 (1978), the Court of Appeals explained that the NPDES permitting process is 16 by nature an adjudicatory one; its purpose is to determine facts in particular cases, not to promulgate policy-type rules or standards. 572 F.2d at 876. In Marathon Oil Co. v. E.P.A., 564 F.2d 1253 (9th Cir. 1977), that Court of Appeals made similar observations. In contrast to other proceed- ings under the Clean Water Act, which provide for the promulgating of technology based effluent limitations, the NPDES permitting process itself focuses on the adjudica- tory application of particular effluent limitations to indi- vidual permittees; it is not designed for the promulgating of policy-type rules or standards. 564 F.2d at 1262. In opposition, the State has turned the permitting process on its head by failing to certify on an individual basis, and instead improperly promulgating a policy-type rule, a 0.2ml1/1 settleable solids limitation which it inserted in each and every one of the 539 NPDES permits. The State’s failure to certify on an individual basis is particularly noteworthy since it involves the imposition of a water quality based effluent limitation, as opposed to a technology based one. In E.P.A. v. California ex rel. State Water Resources Control Board, 426 U.S. 200 (1976), Justice White clearly explained that while technology based effluent limitations may be imposed on an industry-wide or group basis, water quality based effluent limitations must be the result of individualized consideration of the receiving waters and the situation of the permittee: Congress contemplated that there may be some States, which would elect not to develop an NPDES program but would nonetheless determine — as § 510 permits - to adopt water quality standards or other limitations stricter than those EPA itself has promulgated and would otherwise apply. This being the case, 17 Congress must have contemplated that the EPA was capable of issuing permits in that State . . . and of enforcing those stricter standards. Some of those standards - in fact all but those pegged to the quality of the receiving waters — could be translated into permit conditions for each discharger without coordinating the conditions in the other permits, because the effluent limita- tions in the Amendments are technology based and the timetable by which compliance is to be achieved is not made to depend on the perfor- mance of other dischargers. Other standards, pri- marily those involving water quality standards, would require coordination among the permit condi- tions of numerous pollutors . . . and it is evident that Congress contemplated that the EPA was capable of carrying out this function as well. 426 U.S. at 219-20 (emphasis added). The clear wording of the relevant provision of the Act is that water quality based effluent limitations must be “necessary to meet water quality standards.” 33 U.S.C. § 1311(b)(1)(c) (emphasis added). The use of the words “necessary” and “meet” in this context requires an indi- vidual, site-specific determination of the necessity for a given water quality based effluent limitation. As such, the Act does not provide broad license to regulate in the name of water quality. The power to impose a water quality based effluent limitation is circumscribed by the necessity for the limitation being as stringent as it is. Cf. Natural Resources Defense Council v. E.P.A., 273 U.S. App. D.C. 240, 859 F.2d 156, 208 (1988). In sum, the State’s mass certification practice contra- venes the NPDES permitting process as envisioned in the Clean Water Act and its implementing regulations. The Alaska Supreme Court’s decision in this respect is in 18 direct conflict with the provisions of the Act as construed by this Court and federal courts of appeal. Given the thousands of NPDES permit certifications which have occurred under the Clean Water Act, this case stands alone as the sole reported decision involving a mass certification. As the Chief Justice observed in another context, the unprecedented nature of the State’s mass certification attests not to its correctness but to its error. Leo Sheep Co. v. United States, 440 U.S. 668, 686 (1979). “It is some testament to common sense that the present case is virtually unprecedented.” Id. Il. BY FAILING TO CERTIFY WITHIN THE 60- DAY PERIOD PRESCRIBED BY LAW, THE STATE WAIVED ANY RIGHT TO CERTIFY THE NPDES PERMITS. , The purpose behind the time requirement in the cer- tification process is to protect the permittee so that his application is not frustrated by State delay. House Report No. 92-911 at 122 (March 11, 1972) (1972 House Report). When EPA promulgated 40 C.F.R. § 124.53, the Adminis- trator accordingly explained: Many commenters objected to the delays caused by the State certification process in the NPDES program. Specifically they thought that the provision in the proposal for potentially allowing a State one year to certify was uncon- scionable. In response to those comments the regulations have been modified so that the right to certify will be deemed waived unless exer- cised within a specified reasonable time which shall not exceed 60 days unless the Regional 19 Administrator finds that unusual circumstances require a longer time. 44 Fed. Reg. 32880 (emphasis in original). Under 40 C.FR. § 124.53(c)(3), EPA may, of course, advise the State that it will have less than 60 days in which to certify. 42 Fed. Reg. 37115. For the State to exceed the 60 days, however, the State must first notify EPA in writing that more time is needed for evaluating the permit. Id. EPA is not required to grant such a request. /d. In this case there is no evidence whatsoever that the State requested by any means, much less in writing, an extension of the certification period or that EPA granted this imaginary request. Where, as here, the State fails to certify within the prescribed period, “then the certifica- tion requirement is waived.” 1972 House Report at 122 (emphasis added). In the words of the Act, “[iJf the State . . . refuses to act on a request for certification within [the prescribed] period of time . . . after receipt of such request, the certification requirements of this sub- section shall be waived with respect to such federal appli- cation.” 33 U.S.C. § 1341(a)(1) (emphasis added); see 40 C.F.R. § 124.53(d). If the State fails to certify within a required time, waiver is automatic. Environmental Defense Fund v. Alexander, 501 F.Supp. 742, 771 (N.D.Miss. 1980), affirmed in part, reversed in part on other grounds, 651 F.2d 983 (5th Cir. 1981), on remand, 554 F.Supp. 451 (N.D.Miss. 1981). During the case, the State’s arguments have boiled down to asserting that since EPA accepted the State’s untimely certification, any challenge to the timeliness of the State’s certification must be brought before EPA. 2 ey 4 opinmeagy RIT nde RON EE STII ATT HD An Ae Qe OR WHS we App. 131 over again.” 714 P.2d at 581. After analyzing these var- ious arguments, the Foster court agreed that “the [agency’s] failure to render and sign its decision under the terms of the [relevant statute] makes its decision null and void.” Id. As the court explained: “The words of [the statute] are mandatory. There is no room for constru[ction] . . . Where rulings by the administrative agencies are not in accord with the basic requirements of the stat- utes relating to those agencies, the decisions of the agencies are void. The ninety day period required under [the statute] expired on August 1, 1984. The [agency’s] decision was not signed until August 6, 1984, five days after the statu- tory requirement ended. Because the [agency] failed to take action within the required ninety day period, its decision is void and must be reversed. To rule otherwise would ignore the plain language of [the statute]’” (sic) Id. (citation omitted) (emphasis added) Here, the DEC rendered its decision almost one month after the expiration of the certification period. (AR 1475, 1477). This action is plainly contrary to the lan- guage and intent of 40 C.F.R. 125.53(c)(3), that [“]the State will be deemed to have waived its right to certify unless that right is exercised within a reasonable time not to exceed 60 days.” The requirement is not “may” but man- datory, and the “agency’s failure to follow regulations is fatal to the deviant action.” Union of Concerned Scientists v. Atomic Energy Commission, 499 F.2d 1069, 1072 (D.C.Cir. 1974). ; As a final note, the State may contend, as the Decid- ing Officer did, that this issue is not one for resolution by this Court, and that the “argument is really one which App. 132 would more appropriately be made to the EPA than to the State.” (AR 1486). Any such contention, however, is firmly against a string of federal decisions consistently agreeing that “the proper forum to review the appro- priateness of a state’s certification is the state court.” Roosevelt Campebello Intern. Park v. U.S.E.P.A., 684 F.2d 1041, 1056 (1st Cir. 1982); see also United States Steel Corp. v. Train, 556 F.2d 822, 837-39 & n.22(7th Cir. 1977); Lake Erie Alliance v. U.S. Army Corps of Engineers, 526 F.Supp. 1063, 1074 (W.D.Pa. 1981), affirmed, 707 F.2d 1392 (3rd Cir. 1983), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983), Mobil Oil Corp. v. Kelley, 426 F.Supp. 230, 234-35 (S.D.Ala. 1976). C. Permit Modifications Limited To Turbidity and Arsenic When the State and EPA issued their Public Notice of Proposed Modifications to the 1984 NPDES permits, the notices made clear that the modifications concerned solely the effluent limits for turbidity and arsenic, noth- ing more. (AR 1251-98, 2804E-2804CAA). As to this action, the Code of Federal Regulations makes explicit provision that only the terms subject to modification may be changed. 40 C.FR. __ 122.62. “When a permit is modified, only the conditions subject to modification are reopened.” Id. Accordingly, the effluent limitations for settleable solids were to have been left undisturbed. The State’s prying open of the settleable solids limitation and sudden insertion of a different limit is directly contrary to this basic prohibition and, as such, fatal to the deviant action. See Union of Concerned Scientists, 499 F.2d at 1072; Foster, 714 P.2d at 581. a 4 : > 5 4 a * App. 133 D. Failure to Provide Statement of Degree To Which Conditions Could Be Made Less Stringent A pertinent provision of 40 C.FR. ___ 124.53(e)(3) reads as follows: State certification shall be in writing and shall include [a] statement of the extent to which each condition of the draft permit can be made less strin- gent without violating the requirements of State law, including water quality standards. Failure to pro- vide this statement for any condition waives the right to certify or object to any less stringent condition which may be established during the EPA permit issuance process. (emphasis added) One will search in vain for any DEC statement in any permit as to any condition at all which may be made less stringent without violating State law. The DEC simply failed on every count to provide the requisite statement, and as § 124.53(e)(3) explains, must be held to have waived its right to certify. When one examines the record, the State’s failure is all the more blatant since the uncontroverted facts indi- cate that the impermissibly inserted .2 ml/1 settleable solids effluent could have been greatly relaxed, depend- ing on the specific mining site, and that the same holds for the turbidity effluent, if indeed a turbidity effluent can ever be justified at all. 1. Disregard of Dilution Ratios for Settleable Solids In the proceeding before Deciding Officer Ashburn, evidence was presented, and the Deciding Officer so found, dilution ratios that ranged from 1:1 to 1:9, depend- ing on the site-specific of the particular operation. (AR App. 134 1479). Plugging this information into a mathematical for- mula, the following equation represents the allowable effluent on a site-specific basis: A = .1ml/l x D where A = Allowable effiuent D. = dilution factor .1 ml/l = no measuarable increase at measuring point downstream? Thus, where the dilution ration of effluent to receiving water is 1:1, a .2 ml/1 effluent will satisfy the .1 ml/1 “no measurable increase” downsiream. However, where the dilution ratio is 1:9, the .2 ml/l requirement is unduly harsh since a 1.0 ml/1 effluent will nonetheless satisfy the .1 ml/l Water Quality Standard (WQS). 2. The Turbidity Un-Effluent In rendering their decisions, both the DEC and the Deciding Officer neglected to consider the effects of the 5 NTU turbidity effluent limit in the NPDES permits. Instead, the .2 ml/1 standard was considered as an iso- lated effluent limit. (R 1481). The evidence presented by those well-versed in the matter established that, though there was some difference of opinion about the scientific and economic attainability of the State’s “no measurable increase” standard, the 5 3 This is the applicable State Water Quality Standard (WQS) for settleable solids. See 18 AAC 70.020(b) (table). App. 135 NTU effluent limit for turbidity is absolutely unattainable so as to be confiscatory and effect a taking on its face. (AR 237-41; AR 246-56; AR 256-318; AR 350-53; AR 354-57) See Agins v. Tiburon, 447 U.S. 255, 100 S.Ct.2138, 65 L.Ed.2d 1061 (1980). What is most remarkable about the State’s utilization of the 5 NTU limit is that where the natural turbidity of the water is more than 50 NTU, the applicable State Water Quality Standard allows an increase in turbidity of 5 NTU plus ten (10) percent of the amount that the natural turbidity of the water exceeds 50 NTU, with a maximum increase of 25 NTU. 18 AAC 70.020(b)(table). It should further be noted that the 5-25 NTU range for turbidity set forth at 18 AAC 70.020(b) is a State Water Quality Standard and not an effluent limit. The 5-25 NTU range is like the “no measureable (sic) increase” WQS applicable to settleable solids, see Part IV.D.01. & n.3., supra; they both address the WQS to be attained by the dilution of the effluent prior to the measuring point. Thus, the same overstringency arises as with the settle- able solids effluent. Assuming similar dilution rations of from 1:1 to 1:9, see Part IV.D.1., supra, the allowable turbi- dity effluents should be from 10 NTU to 250 NTU, with 5 NTU nowhere to be found. To find otherwise would require the magical assumption that turbidity somehow propagates exponentially in the course of being diluted. The real question, however, is what is a turbidity effluent doing in the permits in the first place? Turbidity is in essence a measurement of light passing through water. See 18 AAC 70.020 Notes. It is a condition or quality of the water, a water quality standard. See Id. at App. 136 020(b). The Clean Water Act (CWA), however, is not concerned with regulating the discharge of “conditions” but with regulating the discharge of “pollutants,” a defi- nition which “turbidity” simply fails to meet. See National Wildlife Association v. Gorsuch, 693 F.2d 156, 171-72 (D.C.Cir. 1982). “Clear water is not within the definition of a pollutant under the CWA.” Orleans Audubon Society v. Lee, 742 F.2d 901, 910, rehearing en banc denied, 750 F.3d 69 (1984). Interestingly, the State itself recognized in its certi- fication decision the inherent contradiction. of utilizing a State Water Quality Standard as an effluent limit. (AR 3) The State, however, neglected to take the appropriate step and strike the turbidity term from the permits. 3. On The Record Requirement Ignored As MAC discussed in Parts II and III, supra, the NPDES process is a highly individualized one that is fact finding and not policy making in nature. See Seacoast Anti-Pollution League, 572 F.2d at 876-77. Thus, when the DEC made its permit decisions, it was to have based its decision on that information contained in the particular permit, plus the record generated at the public hearings on the matter. 40 C.F.R. _ 121.2(a)(2); 18 AAC 15.160. As such, the DEC was to have made its certification deci- sions on the record in accordance with the information in the permits and the evidence adduced at the hearings. Seacoast Anti-Pollution League, 572 F.2d at 877-78. In prac- tice, however, this requirement was ignored. ‘pp. 137 The person entrusted with formulating the DEC’s decision, Randolph Bayliss, testified that most of the var- ious applications for NPDES permits were not even reviewed at all. (AR 3266). Apparently, the conglome- rated hearings that were held served as the same mere formality since the final decision was soleiy the result of meetings with various concerned parties, discussions among agency personnel, and information gathered from Mr. Bayliss’ personal readings and experience. (AR 911-919, 3234-71). This “off the record” certification is the exact opposite of that contemplated. The DEC was to have certified “limited to the administrative record as a basis for decision making.” Herbert, 743 P.2d at 397. Instead, the agency consciously excluded the record and made a self-informed policy choice. The tragedy of the DEC’s method is twofold. Not only should such decisions be based on the record to insure reasoned decision making, equally as important, they are to be based on the record so as to guarantee meaningful judicial review. Southeast Alaska Conservation Council v. State, 665 P.2d 544, 549 (Alaska 1983)(SEACC); Seacoast Anti-Pollution League, 572 F.2d at 876. Practices such as the DEC’s, then, not only dislocate the permitting process, they also hamper this Court’s function of engag- ing in the requisite probing review. See SEACC, 665 P.2d at 549. They are practices that are never to be condoned. Where those responsible for rendering a decision are unfamiliar with the record on which they are to base their decision, the decision must be set aside. Messer v. Snohomish County Board of Adjustment, 19 Wash.App. 780, 578 P.2d 50, 59 (Wash.App. 1978). App. 138 DATED this 16th day of December, 1987, at Fair- banks, Alaska. LAW OFFICES OF WILLIAM R. SATTERBERG, JR. By /s/ William R. Satterberg, Jr. William R. Satterberg, Jr. App. 139 IN THE SUPREME COURT FOR THE STATE OF ALASKA MINERS ADVOCACY ) COUNCIL, INC., ) Appellant, V. STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al, Appellee. TRUSTEES FOR ALASKA; NORTHERN ALASKA ENVIRONMENTAL CENTER, Appellant, V. STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and DENNIS KELSO, Commissioner of the Department of Environmental Conservation, and MINERS ADVOCACY COUNCIL, INC., Appellees. en ee ee ee ee ee a a a_i Supreme Court No. $2369 & $2370 (Superior Court No. 4FA-86-1556 Civil) (Consolidated with 4FA-86-1690 Civil) App. 140 REPLY BRIEF OF APPELLANT MINERS ADVOCACY COUNCIL LAW OFFICES OF WILLIAM R. SATTERBERG, JR. 709 Fourth Avenue Fairbanks, Alaska 99701 Attorney for Appellant, MAC /s/ William R. Satterberg, Jr. William R. Satterberg, Jr. FILED in the Supreme Court of the State of Alaska this 29th day of March, 1988. /s/ Peggy D. Lewis Deputy Clerk . * . B. The DEC Failed To State To What Extent Permit Conditions Could Be Made Less Stringent. In the Brief of Appellee at 5-6 and 36-37, the State continues to maintain that it is under no duty whatsoever to indicate to what extent individual permit conditions can be made less stringent and still meet the require- ments of State law. To the contrary, 40 CFR 124.53(e)(3) provides that the State must so indicate and a failure to do so waives the right to certify. The DEC’s confusion in this regard was recently noted by the Court in Marathon Oil Co. v. E.P.A., supra, 830 F.2d 1346. In Marathon Oil, DEC, oddly enough, certified an individual NPDES permit on a very site-specific basis. See 830 F.2d at 1349-53. During the certification process, DEC labored unter (sic) the mistaken impression that it could not relax conditions in an NPDES permit but could only make them more stringent. See id. at 1351 & n.26, App. 141 1352 & n.35, 1353. Yet, despite this erroneous conception of the certification requirements, DEC still rendered that certification which it claims it may not render here, one which modified the conditions of the permit so that the conditions could not be made any less stringent without violating the requirements of State law. See id. at 1352-53. When EPA promulgated 40 CFR 124.53(e)(3), the Administrator explained the purpose of the provision and that it does indeed mean what it says: Some problems have resulted from the practice of certifying draft permits, which practice has arisen from the practical difficulties of certifying applications. In particular, certifications have not always clearly stated exactly what condi- tions are necessary to comply with State law, and whether less stringent conditions would also satisfy State law. The final regulations rem- edy these problems by requiring states to set forth in all cases the minimum terms and condi- tions which will be necessary to comply with applicable law. For example, if a State certifies a permit with an effluent limitation imposing a daily maximum BOD of 25ml/I, it will be required to identify also a ceiling representing the minimum level of control, such as 30mg/1 or 40mg/1, which the State finds necessary to com- ply with State law. 44 Fed.Reg. 32880. EPA recognized the burden this pro- cedure places upon states, but found any alternative to be unacceptable. Id. The result of the State’s failure to indicate the extent to which the terms of individual’s permits could be relaxed, yet still comply with State law, has been to severely prejudice the rights of the individual permittees. App. 142 Absent the required State statements, EPA has no author- ity to determine whether limitations certified by the State are more stringent than required to meet the require- ments of State law. Roosevelt Campobello, 684 F.2d at 1056. Thus, when individual miners have attempted to obtain evidentiary hearings on the extent to which their effluent limits could be relaxed as to settleable solids, turbidity, and arsenic, the miners have struck a brick wall. See In the Matter of: National Pollutant Discharge Elimination System Permit for 415 Alaska Placer Miners, More or Less, Docket No. 1087-08-03-402C, Regional Administrators Decision on Request for Evidentiary Hearing, Attachment C at 1-2 (1987); In the Matter of: National Pollutant Discharge Elim- ination System Permit for 539 Alaska Placer Miners, More or Less, Docket No. 1085-06-06-14-402C, Regional Adminis- trators Decision on Request for Evidentiary Hearing, Attachment B at 3-4 (January 30, 1987). The Regional Administrator explained: Pursuant to Section 401 of the Clean Water Act, 33 U.S.C. § 1341, and 40 CFR § 124.53, the Alaska Department of Environmental Conserva- tion certified 0.2ml/1 as the effluent limit for settleable solids, 5 NTU’s above background for turbidity and 0.05mg/1 for total arsenic. 33 U.S.C. § 1341 and 40 CFR § 124.55 require that EPA include as a permit condition any more stringent effluent limit certified by the state as necessary to meet the state’s water quality stan- dards . . . Because EPA lacks jurisdiction to review permit limitations and conditions attrib- utable to state certification, the issue of whether a less stringent limit is required is not a proper issue for an evidentiary hearing and the request is denied. See 40 CFR § 124.55(e); In The Matter of App. 143 Homestake Mining Company, NPDES Appeal No. 84-5 (May 19, 1986). 415 Alaska Placer Miners, supra, Attachment C at 1-2. * * * CONCLUSION DEC has been derelict in its duties. Certification is intended to be based on full information. Senate Report No. 91-351 at 28. (August 7, 1969) (hereinafter 1969 Senate Report). The DEC, however, complains that it does not have such information, though it has the authority to obtain such information from the permittees, Id. at 28-29; 18 AAC 15.130(b), but not by imposing unreasonably burdensome, foreign chores, such as requiring permittees to perform highly scientific tests or gather complex, tech- nical data. Marathon Oil v. E.P.A., 564 F.2d at 1253 & n.56 (9th Cir. 1977); 1969 Senate Report at 28; see American Petroleum Institute, supra, 787 F.2d at 984. It is a question of where lies the expertise. Under the CWA, DEC, as the State’s resident expert on environmental matters, has a duty not only to obtain sufficient information so that its certifications are “fully informed,” it has the further duty to engage in a continu- ing process of planning and information gathering. See CWA § 303(e), 33 U.S.C. § 1313(e). State law requires much the same. See AS 46.03.040. This Court has corre- spondingly recognized that in environmental matters, “an agency has a continuing duty to gather and evaluate new information” so that the agency is best able to take the requisite “hard look” at those problems which do App. 144 arise in the course of administering its area of law. Alaska Survival, supra, 723 P.2d at 1287. To perform its duties, DEC has been granted exten- sive authority duties. The agency has been empowered to undertake studies, inquiries, surveys, and analyses in order to fulfill its legal obligations. AS 46.03.020(5). To insure that these obligations are met, DEC has authority to enlist the services of numerous public and private agencies, including colleges, universities, institutes, foun- dations, and other research organizations. Id. However, in this case DEC would leave these resources “in the ground,” perferring (sic) instead to wave the lazy flag of “impossiblity” or administrative infeasibility, the so- called “short cut” doctrine. Contentions similar to DEC’s were raised by EPA in Natural Resources Defense Council v. Costle, supra, 568 F.2d 1369 (NRDC). In NRDC, EPA filed a Memorandum on “Impossiblity,” which raised the spectre of administrative infeasibility if the CWA was not interpreted according to EPA’s wishes. 568 F.2d at 1377-78. In the Court’s opinion, Circuit Judge Leventhal looked with a skeptical eye on such contentions, especially since EPA, like the State here, made little if any effort to comply but merely proceeded as was most convenient. Id. at 1380. Administration under the CWA is not intended to be easy; it requires agency effort and creative solutions to difficult problems. But this ambitious statute is not hospitable to the concept that the appropriate response to a difficult problem is not to try atall. ... Imagina- tion conjoined with determination will likely give EPA a capability for practicable administra- tion. If not, the remedy lies with Congress. NRDC, 568 F.2d at 1380,1383. App. 145 The solution to the DEC’s administrative problems in this case lies first with the DEC. Working in cooperation with EPA, DEC can certainly do better than its present myopic insistence on the status quo. To make certifica- tions more manageable, MAC would suggest the following: (1) Issue NPDES Permits for a Longer Period Pursuant to CWA § 402(b)(1)(B), 33 U.S.C. § 1342(b)(1)(B), and 40 CFR 122.46(a), NPDES permits may be issued for five years instead of the two or three years in this case. (2) Stagger the Issuance of the Permits In the present case, the permits were issued so that all expired at once. [IJf the permits were issued for five years and staggered, the State would never have to review more than 20 per- cent of the permits in a given year, as opposed to the “all at once” approach in this case. (3) Incorporate By Reference Once the State has properly certified a permit, subsequent certifications of that permit could incorporate previous findings by reference. New information would be needed only to the extent that there were changes or proposed changes in the activity. Administrative fears concerning inroads upon agency habit are rarely borne out in reality. See Baker v. City of Fairbanks, supra, 471 P.2d at 402. If the DEC puts its administrative ingenuity, its imagination and determina- tion to the task, a workable solution will undoubtedly be found. Should a solution not be forthcoming, the agency’s redress lies not with this Court but with Congress and/or the State Legislature. See NRDC, 568 F.2d at 1383; Mara- thon Oil, supra, 564 F.2d at 1273, and 830 F.2d; cf. Board of App. 146 Governors, supra, ___ U.S. at ___ n.7, 106 S.Ct. at 689 n.7, 88 L.Ed.2d at 703 n.7. WHEREFORE, MAC respectfully prays that the court reverse the decisions of the Superior Court and the Deciding Officer, hold that the State of Alaska waived its right to certify 1985 NPDES placer mining permits, hold that the .2ml1/1 settleable solids effluent is otherwise null and void as being both an improperly promulgated “reg- ulation” and an arbitrarily and otherwise illegally inser- ted permit term, hold that the 5 NTU turbidity effluent is null and void as an overly stringent and otherwise imper- missible effluent limit, and further that the Court hold that the original .7/1.5m1/! settieable solids effluent shall remain the enforceable figure until such time as the DEC obtains the requisite information and properly certifies future NPDES permits on a permit-by-permit, site-spe- cific basis. DATED this 3rd day of March, 1988, at Fairbanks, | Alaska. LAW OFFICES OF WILLIAM R. SATTERBERG, JR. /s/ William R. Satterberg, Jr. William R. Satterberg, Jr. App. 147 APPENDIX N PLACER MINING HEARING Day One - 2/3/86 MARK ASHBURN : Deciding Officer APPEARANCES: Trustees for Alaska Eric Smith Miner’s Advocacy Council William Satterberg Miner’s Representative Ann Rhian State Department of Environmental Conservation John McDonaugh HEARING OFFICER: ... And so I guess what I’d ask you to address is this notion that if you establish that predi- cate, that it’s not necessary to meet water quality stan- dards, do your clients still, are your clients still in jeopardy such that you would -um- advise them not to testify, I, 1, my inclination is to go forward at the hearing because I don’t see what, I don’t see the problem as going away for a number of years, and if we are going to have the hearing, I think we should have it, if in April the problem will, for practical purposes, probably be -um-, probably not be there -um- it seems to me your client still would face a difficult -uh- choice, that if they are, were going to testify and offer evidence that would essentially make the EPA’s case, that that would be some- thing that would be as, as much a jeopardy then as now. App. 148 APPENDIX O CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED The United States Constitution, Amendment V provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, with- out just compensation. The United States Constitution, Amendment XIV, § 1 provides: All persons born or na‘uralized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any per- son of life, liberty, or property, without due process of law; nor deny to any person within its juris- diction the equal protection of the laws.~ App. 149 33 U.S.C. § 1311(b)(1)(C) provides: Effluent limitations * * * (b) Timetable for achievement of objectives In order to carry out the objective of this chapter there shall be achieved —- 73° 7 (C) Not later than July 1, 1977, any more stringent limitation, including those necessary to meet water qual- ity standards, treatment standards, or schedules of com- pliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality stan- dard established pursuant to this chapter. 33 U.S.C. § 1341 provides: Certification (a) Compliance with applicable requirements; applica- tion; procedures; license suspension (1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the App. 150 applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. In the case of any such activity for which there is not an applicable effluent limitation or other limitation under sections 1311(b) and 1312 of this title, and there is not an applicable standard under sec- tions 1316 and 1317 of this title, the State shall so certify, except that any such certification shall not be deemed to satisfy section 1371(c) of this title. Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures for public hear- ings in connection with specific applications. In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this sub- section shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preced- ing sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be. (2) Upon receipt of such application and certifica- tion the licensing or permitting agency shall immediately notify the Administrator of such application and certifica- tion. Whenever such a discharge may affect, as deter- mined by the Administrator, the quality of the waters of any other State, the Administrator within thirty days of App. 151 the date of notice of application for such Federal license or permit shall so notify such other State, the licensing or permitting agency, and the applicant. If, within sixty days after receipt of such notification, such other State deter- mines that such discharge will affect the quality of its waters so as to violate any water quality requirements in such State, and within such sixty-day period notifies the Administrator and the licensing or permitting agency in writing of its objection to the issuance of such license or permit and requests a public hearing on such objection, the licensing or permitting agency shall hold such a hear- ing. The Administrator shall at such hearing submit his evaluation and recommendations with respect to ‘any such objection to the licensing or permitting agency. Such agency, based upon the recommendations of such State, the Administrator, and upon any additional evidence, if any, presented to the agency at the hearing, shall condi- tion such license or permit in such manner as may be necessary to insure compliance with applicable water quality requirements. If the imposition of conditions can- not insure such compliance such agency shall not issue such license or permit. (3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the construction of any facility shall fulfill the requirements of this subsec- tion with respect to certification in connection with any other Federal license or permit required for the operation of such facility unless, after notice to the certifying State, agency, or Administrator, as the case may be, which shall be given by the Federal agency to whom application is made for such operating license or permit, the State, or if appropriate, the interstate agency or the Administrator, App. 152 notifies such agency within sixty days after receipt of such notice that there is no longer reasonable assurance that there will be compliance with the applicable provi- sions of sections 1311, 1312, 1313, 1316, and 1317 of this title because of changes since the construction license or permit certification was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters into which such discharge is made, (C) the water quality criteria applicable to such waters or (D) applica- ble effluent limitations or other requirements. This para- graph shall be inapplicable in any case where the applicant for such operating license or permit has failed to provide the certifying State, or, if appropriate, the interstate agency or the Administrator, with notice of any proposed changes in the construction or operation of the facility with respect to which a construction license or permit has been granted, which changes may result in violation of section 1311, 1312, 1313, 1316, or 1317 of this title. (4) Prior to the initial operation of any federally licensed or permitted facility or activity which may result in any discharge into the navigable waters and with respect to which a certification has been obtained pur- suant to paragraph (1) of this subsection, which facility or activity is not subject to a Federal operating license or permit, the licensee or permittee shall provide an oppor- tunity for such certifying State, or, if appropriate, the interstate agency or the Administrator to review the man- ner in which the facility or activity shall be operated or conducted for the purposes of assuring that applicable effluent limitations or other limitations or other applica- ble water quality requirements will not be violated. Upon App. 153 notification by the certifying State, or if appropriate, the interstate agency or the Administrator that the operation of any such federally licensed or permitted facility or activity will violate applicable effluent limitations or other limitations or other water quality requirements such Federal agency may, after public hearing, suspend such license or permit. If such license or permit is sus- pended, it shall remain suspended until notification is received from the certifying State, agency, or Administra- tor, as the case may be, that there is reasonable assurance that such facility or activity will not violate the applicable provisions of section 1311, 1312, 1313, 1316, or 1317 of this title. (5) Any Federal license or permit with respect to which a certification has been obtained under paragraph (1) of this subsection may be suspended or revoked by — the Federal agency issuing such license or permit upon the entering of a judgment under this chapter that such facility or activity has been operated in violation of the applicable provisions of section 1311, 1312, 1313, 1316, or 1317 of this title. (6) Except with respect to a permit issued under section 1342 of this title, in any case where actual con- struction of a facility has been lawfully commenced prior to April 3, 1970, no certification shall be required under this subsection for a license or permit issued after April 8, 1970, to operate such facility, except that any such license Or permit issued without certification shall terminate April 3, 1973, unless prior to such termination date the App. 154 person having such license or permit submits to the Fed- eral agency which issued such license or permit a certification and otherwise meets the requirements of this section. (b) Compliance with other provisions of law setting applicable water quality requirements Nothing in this section shall be construed to limit the authority of any department or agency pursuant to any other provision of law to require compliance with any applicable water quality requirements. The Administrator shall, upon the request of any Federa' department or agency, or State or interstate agency, or applicant, pro- vide, for the purpose of this section, any relevant infor- mation on applicable effluent limitations, or other limitations, standards, regulations, or requirements, or water quality criteria, and shall, when requested by any such department or agency or State or interstate agency, or applicant, comment on any methods to comply with- such limitations, standards, regulations, requirements, or criteria. (c) Authority of Secretary of the Army to permit use of spoil disposal areas by Federal Licensees or permittees In order to implement the provisions of this section, the Secretary of the Army, acting through the Chief of Engineers, is authorized, if he deems it to be in the public interest, to permit the use of spoil disposal areas under his jurisdiction by Federal licensees or permittees, and to make an appropriate charge for such use. Moneys App. 155 received from such licensees or permittees shall be depos- ited in the Treasury as miscellaneous receipts. (d) Limitations and monitoring requirements of certification Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limita- tions, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibi- tion, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section. 33 U.S.C. § 1342(a)-(c) provides: National pollutant discharge elimination system (a) Permits for discharge of pollutants (1) Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either (A) all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or (B) prior to the taking of necessary imple- menting actions relating to all such requirements, such App. 156 conditions as the Administrator determines are necessary to carry out the provisions of this chapter. (2) The Administrator shall prescribe conditions for such permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate. (3) The permit program of the Administrator under paragraph (1) of this subsection, and permits issued thereunder, shall be subject to the same terms, conditions, and requirements as apply to a State permit program and permits issued thereunder under subsection (b) of this section. (4) All permits for discharges into the navigable waters issued pursuant to section 407 of this title shall be deemed to be permits issued under this subchapter, and permiis issued under this subchapter shall be deemed to be permits issued under section 407 of this title, and shall continue in force and effect for their term unless revoked, ~——tnrodified, or suspended in accordance with the provi- sions of this chapter. (5) No permit for a discharge into the navigable waters shall be issued under section 407 of this title after October 18, 1972. Each application for a permit under section 407 of this title, pending on October 18, 1972, shall be deemed to be an application for a permit under this section. The Administrator shall authorize a State, which he determines has the capability of administering a per- mit program which will carry out the objectives of this chapter to issue permits for discharges into the navigable App. 157 waters within the jurisdiction of such State. The Adminis- trator may exercise the authority granted him by the preceding sentence only during the period which begins on October 18, 1972, and ends either on the ninetieth day after the date of the first promulgation of guidelines required by section 1314(i)(2) of this title, or the date of approval by the Administrator of a permit program for such State under subsection (b) of this section, whichever date first occurs, and no such authorization to a State shall extend beyond the last day of such period. Each such permit shall be subject to such conditions as the Administrator determines are necessary to carry out the provisions of this chapter. No such permit shall issue if the Administrator objects to such issuance. (b) State permit programs At any time after the promulgation of the guidelines required by subsection (i)(2) of section 1314 of this title, the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described App. 158 program. The Administrator shall approve each submit- ted program unless he determines that adequate author- ity does not exist: (1) To issue permits which - (A) apply, and insure compliance with, any applica- ble requirements of sections 1311, 1312, 1316, 1317, and 1343 of this title; (B) are for fixed terms not exceeding five years; and (C) can be terminated or modified for cause includ- ing, but not limited to, the following: (i) violation of any condition of the permit; (ii) obtaining a permit by misrepresenta- tion, or failure to disclose fully all relevant facts; (iii) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge; (D) control the disposal of pollutants into wells; (2)(A) To issue permits which apply, and insure compliance with, all applicable requirements of section 1318 of this title; or (B) To inspect, monitor, enter, and require reports to at least the same extent as required in section 1318 of this title; (3) To insure that the public, and any other State the waters of which may be affected, receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application; App. 159 (4) To insure that the Administrator receives notice of each application (including a copy thereof) for a permit; (5) To insure that any State (other than the permit- ting State), whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State (and the Administrator) with respect to any permit application and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and the Administrator) in writing of its failure to so accept such recommendations together with its reasons for so doing; (6) To insure that no permit will be issued if, in the judgment of the Secretary of the Army acting through the Chief of Engineers, after consultation with the Secretary of the department in which the Coast Guard is operating, anchorage and navigation of any of the navigable waters would be substantially impaired thereby; (7) To abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement; (8) To insure that any permit for a discharge from a publicly owned treatment works includes conditions to require the identification in terms of character and vol- ume of pollutants of any significant source introducing pollutants subject to pretreatment standards under sec- tion 1317(b) of this title into such works and a program to assure compliance with such pretreatment standards by each such source, in addition to adequate notice to the permitting agency of (A) new introductions into such App. 160 works of pollutants from any source which would be a new source as defined in section 1316 of this title if such source were discharging pollutants, (B) new introduc- tions of pollutants into such works from a source which would be subject to section 1311 of this title if it were discharging such pollutants, or (C) a substantial change in volume or character of pollutants being introduced into such works by a source introducing pollutants into such works at the time of issuance of the permit. Such notice shall include information on the quality and quan- tity of effluent to be introduced into such treatment works and any anticipated impact of such change in the quantity or quality of effluent to be discharged from such publicly owned treatment works; and (9) To insure that any industrial user of any publicly owned treatment works will comply with sections 1284(b), 1317, and 1318 of this title. (c) Suspension of Federal program upon submission of State program; withdrawal of approval of State pro- gram; return of State program to Administrator (1) Not later than ninety days after the date on which a State has submitted a program (or revision thereof) pursuant to subsection (b) of this section, the Administra- tor shall suspend the issuance of permits under subsec- tion (a) of this section as to those discharges subject to such program unless he determines that the State permit program does not meet the requirements of subsection (b) of this section or does not conform to the guidelines issued under section 1314(i)(2) of this title. If the Admin- istrator so determines, he shall notify the State of any App. 161 revisions or modifications necessary to conform to such requirements or guidelines. (2) Any State permit program under this section shall at all times be in accordance with this section and guidelines promulgated pursuant to section 1314(i)(2) of this title. (3) Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with require- ments of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reason- able time, not to exceed ninety days, the Administrator shall withdraw approval of such program. The Adminis- trator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. (4) Limitations on partial permit program returns and withdrawals. - A State may return to the Administrator administra- tion, and the Administrator may withdraw under para- graph (3) of this subsection approval, of - (A) a State partial permit program approved under subsection (n)(3) of this section only if the entire permit program being adminis- tered by the State department or agency at the time is returned or withdrawn; and (B) a State partial permit program approved under subsection (n)(4) of this section only if an entire phased component of the per- mit program being administered by the State at the time is returned or withdrawn. | App. 162 40 C.ER. § 121.2(a)(2)-(3) provides: Contents of certification. (a) A certification made by a certifying agency shall include the following: * * * (2) A statement that the certifying agency has either (i) examined the application made by the applicant to the licensing or permitting agency (specifically identifying the number or code affixed to such application) and bases its certification upon an evaluation of the information contained in such application which is relevant to water quality considerations, or (ii) examined other information furnished by the applicant sufficient to permit the certify- ing agency to make the statement described in paragraph (a)(3) of this section; (3) A statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards. 40 C.F.R. § 122.62 provides in relevant part: Modification or revocation and. reissuance of permits * * ~ When the Director receives any information (for example, inspects the facility, receives information sub- mitted by the permittee as required in the permit (see § 122.41), receives a request for modification or revoca- tion and reissuance under § 124.5, or conducts a review of the permit file) he or she may determine whether or not one or more of the causes listed in paragraphs (a) and (b) App. 163 of this section for modification or revocation and reis- suance or both exist. If cause exists, the Director may modify or revoke and reissue the permit accordingly, subject to the limitations of paragraph (c) of this section, and may request an updated application if necessary. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reis- sued, the entire permit is reopened and subject to revi- sion and the permit is reissued for a new term. See § 124.5(c)(2). If cause does not exist under this section or § 122.63, the Director shall not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in § 122.63 for “minor modifications” the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared and other procedures in Part 124 (or procedures of an approved State program) followed. 40 C.ER. § 124.53 provides: State certification. (a) Under CWA section 401(a)(1), EPA may not issue a permit until a certification is granted or waived in accordance with that section by the State in which the discharge originated or will originate. (b) Applications received without a State certifica- tion shall be forwarded by the Regional Administrator to the certifying State Agency with a request that certifica- tion be granted or denied. (c) If State certification has not been received by the time the draft permit is prepared, the Regional Adminis- trator shall send the certifying State agency; App. 164 (1) A copy of a draft permit; (2) A statement that EPA cannot issue or deny the permit until the certifying State agency has granted or denied certification under § 124.55, or waived its right to certify; and (3) A statement that the State will be deemed to have waived its right to certify unless that right is exer- cised within a specified reasonable time not to exceed 60 days from the date the draft permit is mailed to the certifying State agency unless the Regional Administrator finds that unusual circumstances require a longer time. (d) State certification shall be granted or denied within the reasonable time specified under paragraph (c)(3) of this section. The State shall send a notice of its action, including a copy of any certification, to the appli- cant and the Regional Administrator. (e) State certification shall be in writing and shall include: (1) Conditions which are necessary to assure com- pliance with the applicable provisions of CWA sections 208(e), 301, 302, 303, 306, and 307 and with appropriate requirements of State law: (2) When the State certifies a draft permit instead of a permit application, any conditions more stringent than those in the draft permit which the State finds necessary to meet the requirements listed in paragraph (e)(1) of this section. For each more stringent condition, the certifying State agency shall cite the CWA or State law references upon which that condition is based. Failure to provide App. 165 such a citation waives the right to certify with respect to that condition; and (3) A statement of the extent to which each condi- tion of the draft permit can be made less stringent with- out violating the requirements of State law, including water quality standards. Failure to provide this statement for any condition waives the right to certify or object to any less stringent condition which may be established during the EPA permit issuance process. 40 C.ER. § 124.55(b) provides: Effect of State certification. * * * (b) 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 certification or notice of waiver is received after final agency action on the permit, the Regional Administrator may modify the permit on request of the permittee only to the extent necessary to delete any conditions based on a condition in a certification invalidated by a court of competent jurisdiction or by an appropriate State board or agency. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0820%3A1. Public record. Not legal advice.