Legislation & Regulation

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Oregon Miners Take DEQ to Court, Again

January 2011 by Tom

Since 2005, a group representing a handful of Oregon and Washington mining organizations, centered around the Eastern Oregon Mining Association (EOMA) and the Waldo Mining District (WMD), have been actively fighting the Oregon Department of Environmental Quality (DEQ) over their then new “700PM Suction Dredge Mining Permit.” In the fall of 2005, EOMA filed a Petition for Judicial Review of the new permit in the Oregon Court of Appeals on the grounds that the permit was too restrictive and more importantly, it was (and still is) the wrong permit.

§402 vs. §404: DEQ, through an agreement with the federal Environmental Protection Agency (EPA), is issuing the permits in part under the EPA’s authority (§ 402 of the Clean Water Act (CWA)) to issue “National Pollutant Discharge Elimination System” (NPDES) permits, which are normally issued for the discharge from municipal sewage treatment plants and other industries that discharge pollutants into waters from onshore facilities. Because of this, Oregon miners face a host of impossible restrictions, regulations, and fines.

The miners believe that “even if” they fall within CWA authority, it would be under the Army Corps of Engineers and §404 of the CWA for the discharge of “dredged material”—not the EPA and §402 for the discharge of “pollutants.”

Oral arguments were heard on Sept. 5, 2008 in the Court of Appeals, and a decision was presented on Dec. 23, 2009. The court found that DEQ exceeded their authority by not specifying what part of the discharge from suction dredges they were permitting and by doing so, they were regulating discharges that are properly under §404 of the CWA (Army Corps) without the authority to do so.

The court declared the 2005 700PM permit invalid. However, the court went on to say that not only was the discharge from a suction dredge comprised of 1) “dredged material” properly under §404 of the CWA and the Army Corps, and 2) “water”; the court then (against the clear language in the CWA and the 2009 US Supreme Court decision in Coeur Alaska v. Southeast Alaska Conservation Council) stated that “the discharge of turbid wastewater was properly under §402 of the CWA and the EPA.” In other words, the court said that miners in Oregon who discharge streambed sediment back into the water it came out of now need both a §402 and a §404 CWA permit despite the fact that large-scale river dredging for navigation is only required to obtain the §404 CWA permit.

Because the Court of Appeals misinterpreted the CWA, EOMA was forced to appeal the decision to the Oregon Supreme Court (OSC). On Sept. 17, 2010, the OSC agreed to hear the EOMA appeal. However, on Sept. 27, DEQ filed a Motion to Dismiss the EOMA appeal on the grounds that the “permit has expired, their case is moot.”

On Nov. 10, 2010, the Oregon Supreme Court agreed with DEQ and dismissed the EOMA case as moot with no further explanation. On Nov. 24, EOMA filed a Petition for Reconsideration begging the high court to take a second look. To date, we are still awaiting their response. The EOMA petition stated, in part:

The actions of [DEQ] have put at stake the continuing existence and living heritage of the individual small-scale placer gold miners whose predecessors originally settled Oregon over one hundred fifty years ago. By misinterpreting the federal Clean Water Act, Respondents have imposed a permit regime that is economically prohibitive and environmentally unwarranted, frustrating “the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in… the development of economically sound and stable domestic mining, minerals, metal and metal reclamation industries. 30 USC §21a.

Respondents [DEQ] regulate the miners’ tiny, hand-operated, lawn-mower engine-powered suction dredges under a complex regulatory scheme designed to cover toxic discharges from industrial facilities and municipal sewage treatment plants: §402 of the Federal Clean Water Act…

The Respondents refuse to recognize that dredging involves the “discharge of dredged or fill material,” which may only be regulated under §404 of the Act, 33 USC §1344—a point confirmed… by the controlling decision of the United States Supreme Court in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S. Ct. 2458 (2009). The Coeur opinion, the plain language of the Act, the plain language of the controlling regulations, and the legislative history all confirm that Congress never intended the same regulatory regime to apply to both the disposal of sediment and rock dredged from the bottom of water bodies and the discharge of toxic chemicals by manufacturers and others.

Notwithstanding clear federal law, the Court of Appeals, in a decision that lacks any judicial precedent throughout the United States, concluded that the suction dredge discharges here could be parsed in some inherently arbitrary way into (a) larger particles that fell to the bottom of the water bodies faster, and (b) smaller particles that remained suspended longer (causing temporary turbidity), thereby imposing a dual permitting requirement unknown in federal and other law.

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