## Facts

- The EPA promulgated Clean Water Act effluent limitation guidelines and best management practices (BMPs) for placer mining discharges, with significant impact on small gold mines in Alaska.
- Placer mining commonly uses sluice boxes that generate wastewater carrying high levels of total suspended solids and settleable solids discharged into nearby waters.
- The EPA adopted technology-based limits (including BPT and BAT) and concluded that recycling process water was the best available technology for all mines, including small operations.
- The administrative record included extensive technical and economic materials, including a large volume of supporting documentation.
- Individual miners and a miners’ association petitioned for review, challenging EPA’s statutory authority, rulemaking procedures, and the substance of the final limits and BMP requirements.
- Environmental organizations intervened in support of the EPA.

## Issues

1. Whether the EPA had statutory authority under the Clean Water Act to regulate placer mining point-source discharges through effluent limitations and BMPs.
2. Whether the EPA complied with Administrative Procedure Act notice-and-comment requirements, including whether the final rule was a logical outgrowth of the proposal.
3. Whether the final rule was arbitrary or capricious in its technology determinations (including recycling as BAT), cost and economic feasibility analysis, and data-driven numeric limits.
4. Whether the regulations unlawfully mandated a specific technology, provided inadequate variance and timing provisions, or violated constitutional protections.

## Decision

- The Ninth Circuit largely denied the petitions for review and upheld the EPA’s placer mining effluent limitations and BMP regulations.
- The court held the EPA acted within Clean Water Act authority to regulate placer mining discharges as point-source pollution and to issue category-wide technology-based limits.
- The court rejected notice-and-comment challenges, concluding that record supplementation did not deprive meaningful participation and that the final rule, including selection of recycling as BAT, was a logical outgrowth of the proposal.
- The court upheld the EPA’s substantive judgments on BPT and BAT, numeric limits for solids, and related technical and economic analyses under deferential arbitrary-and-capricious review.
- The court rejected claims that the rule impermissibly mandated technology, and it rejected due process and takings-type constitutional challenges.

## Legal Principles

- Clean Water Act technology-based programs authorize the EPA to set industry-wide effluent limitation guidelines for point sources, including mining operations that discharge process wastewater into covered waters.
- Under arbitrary-and-capricious review, courts defer to an agency’s technical, scientific, and economic judgments when supported by the administrative record.
- Notice is sufficient when the proposal identifies the terms or substance of the rule and the subjects and issues involved; the final rule may differ if it is a logical outgrowth of the proposal and comments received.
- BAT “economic achievability” is evaluated on an industry-wide basis; the statute does not require protecting every existing operator from adverse economic effects.
- The EPA may base effluent limits on a model technology and express requirements as performance limits, even if compliance effectively requires widespread adoption of that technology.

## Conclusion

The Ninth Circuit sustained the EPA’s Clean Water Act regulations for placer mining, holding that the agency had authority to regulate these point-source discharges and that its notice-and-comment process and technical and economic determinations—particularly the selection of recycling as BAT and numeric solids limits—were not arbitrary, capricious, or unconstitutional.


Rybachek v. U.S. Env’t Prot. Agency, 904 F.2d 1276 (9th Cir. 1990)