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

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

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

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

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

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

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

Oil Spill Plan: The permit imposes the following requirement:

The operator shall maintain fuel handling and stor-
age facilities in a manner which will prevent the
discharge of fuel oil into the receiving waters or ad-
joining shoreline. A Spill Prevention Control and
Countermeasure Plan (SPCC Plan) shall be prepared
in accordance with provisions of 40 CFR Part 112
for facilities storing 600 gallons in a single container
above ground, 1320 gallons in the aggregate above
ground, or 42,000 gallons below ground.

In challenging this provision, MAC asserts that "since placer mining is not a petroleum related industry", it is inappropriate to apply this provision to placer miners.

Section 112.1(b) applies to owners and operators of non-transportation-related onshore and offshore facilities engaged in "drilling, producing, gathering, storing, processing, refining, transferring, distributing or consuming oil and oil products" which, due to their location "could reasonably be expected to discharge oil in harmful quantities

into or upon the navigable waters of the United States or adjoining shorelines." Thus MAC's assertion that placer mining is not "a petroleum related industry" does not directly address the applicability of § 112.1(b).

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

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

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

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

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

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

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

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

Monitoring results must be conducted according to
test procedures approved under 40 CFR part 136
*** unless other test procedures have been specified
in the permit.

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

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

Section 125.3(c)(3) provides that, [w]here promul-
gated effluent limitations guidelines only apply to
certain aspects of the discharger's operation, or to
certain pollutants, other aspects or activities are sub-
ject to regulation on a case-by-case basis in order
to carry out the provisions of the Act.

In this case, the sluicing process is covered by the national effluent guidelines for gold placer mining, but hydraulic removal of overburden is not covered. See Rybachek v. EPA, 904 F.2d 1276, 1298 (9th Cir. 1990). Thus, discharges resulting from hydraulic removal of overburden must be regulated through permit limitations that are established on a case-by-case basis. Id. Under Section 125.3(c)(2), when setting effluent limitations for activities or processes that are not covered by national effluent guidelines, the permit writer must apply the appropriate factors listed in Section 125.3(d). Section 125.3(d), in turn, provides that, in setting BPT and BAT limitations on a case-by-case basis pursuant to § 125.3(c), the permit writer must consider, inter alia, the "process employed." 40 CFR §§ 125.3(d)(1)(ii) and 125.3(d)(3)(iii).

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

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