E. Or. Mining Ass'n v. Dep't of Envtl. Quality

365 Or. 313

445 P.3d 251

EASTERN OREGON MINING ASSOCIATION; Guy Michael; and Charles Chase, Petitioners on Review,

v.DEPARTMENT OF ENVIRONMENTAL QUALITY; Dick Pederson, in his capacity as Director of the Department of Environmental Quality; and Neil Mullane, in his capacity as Administrator of the Water Quality Division of the Department of Environmental Quality, Respondents on Review.

Waldo Mining District, an unincorporated association; Thomas A. Kitchar; and Donald R. Young, Petitioners on Review,

v.Department of Environmental Quality; Dick Pederson, in his capacity as Director of the Department of Environmental Quality; and Neil Mullane, in his capacity as Administrator of the Water Quality Division of the Department of Environmental Quality, Respondents on Review.

CC 10C24263, (CC 11C19071), (SC S065097)

Supreme Court of Oregon.

Argued and submitted May 10, 2018.

July 25, 2019

James L. Buchal, Murphy & Buchal, LLP, Portland, argued the cause and filed the briefs for petitioners on review.

Michael A. Casper, Assistant Attorney General, Salem, argued the cause and filed the brief for respondents on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General, Salem.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Judge pro tempore.^**

KISTLER, S. J.

The Clean Water Act, 33 USC §§ 1251 - 1388, prohibits the discharge of any pollutant into the waters of the United States unless the Environmental Protection Agency (the EPA) or the Army Corps of Engineers (the Corps) has issued a permit authorizing the discharge. 33 USC §§ 1311(a), 1342, 1344. Acting under authority delegated by the EPA, the Oregon Department of Environmental Quality (DEQ) issued a general permit in 2010 for the discharge of certain pollutants resulting from suction dredge mining. Petitioners filed this proceeding arguing, among other things, that only the Corps has authority under the Clean Water Act to permit the discharge of materials resulting from suction dredge mining. The Court of Appeals disagreed and affirmed the trial court’s order upholding DEQ’s permit. Having allowed review, we now affirm the Court of Appeals decision.

As applicable here, suction dredge mining involves using a small motorized pump mounted on a boat to "vacuum up" water and sediment from stream and river beds.¹ The water and sediment are passed over a sluice tray, which separates out heavier metals, such as gold, and the remaining material is then discharged into the water. In addition to discharging the leftover sediment and water, suction dredge mining creates a turbid wastewater plume and can remobilize pollutants, such as mercury, that otherwise would have remained undisturbed and relatively inactive in the sediment.

This litigation began when DEQ’s predecessor, the Oregon Environmental Quality Commission (EQC), issued a general permit in 2005 authorizing suction dredge mining in Oregon as long as that activity met certain water quality standards. See Northwest Environmental Defense Center v. EQC , 232 Or. App. 619, 223 P.3d 1071 (2009). The 2005 permit was challenged by both miners and environmentalists. In considering those challenges, the Court of Appeals reviewed regulations promulgated by the Corps and the EPA, as well as those agencies’ application of the regulations to suction dredge mining. See id. at 631-42, 223 P.3d 1071. Based on that review, the Court of Appeals concluded that the process of suction dredge mining created both turbid wastewater plumes and dredged spoil. Id. at 643-44, 223 P.3d 1071. It reasoned that turbid wastewater plumes are pollutants that may not be discharged into navigable water without a permit from the EPA (or a state agency to which the EPA has delegated its permitting authority) while dredged spoil constitutes dredged material that requires a permit from the Corps before it may be discharged. Id. at 644-45, 223 P.3d 1071.

Both sides sought review of that decision. After this court allowed review, the 2005 permit expired, and the case was dismissed as moot. See Northwest Environmental Defense Center v. EQC , 349 Or. 246, 245 P.3d 130 (2010). In 2010, DEQ issued a new five-year permit for suction dredge mining that complied with the distinction that the Court of Appeals had drawn in NEDC . See Eastern Oregon Mining Assoc. v. DEQ , 285 Or. App. 821, 826, 398 P.3d 449 (2017). Petitioners challenged the 2010 permit, which expired while the case was pending in the Court of Appeals, and the Court of Appeals dismissed the case as moot. Eastern Oregon Mining Assoc. v. DEQ , 273 Or. App. 259, 361 P.3d 38 (2015). This court reversed that decision, reasoning that the issue was capable of repetition yet evading review. Eastern Oregon Mining Association v. DEQ , 360 Or. 10, 376 P.3d 288 (2016). We remanded this case to the Court of Appeals so that it could consider whether to exercise its discretion to hear one or more of the issues that petitioners sought to raise.

On remand, the Court of Appeals exercised its discretion to consider petitioners’ first assignment of error—whether DEQ, acting under authority delegated by the EPA, legally could issue a permit for suction dredge mining. EOMA , 285 Or. App. at 833, 398 P.3d 449. The Court of Appeals did not exercise its discretion to consider petitioners’ other assignments of error. Id. at 834, 398 P.3d 449. Specifically, it did not exercise its discretion to consider petitioners’ third assignment of error claiming that DEQ’s factual findings were not supported by substantial evidence. Id. Focusing only on the legal issues raised by the first assignment of error, the Court of Appeals adhered to its decision in NEDC ; more specifically, it considered and rejected the grounds that petitioners raised for reconsidering that decision. Id. at 838-39, 398 P.3d 449. We allowed review to consider the single assignment of error that the Court of Appeals decided.

Before turning to that assignment of error, we note that neither petitioners nor the state disputes that the material discharged as a result of suction dredge mining constitutes a "pollutant" for the purposes of the Clean Water Act. That act provides that "pollutant" means, among other things, "dredged spoil," "rock," and "sand." 33 USC § 1362(6). The parties’ dispute arises over which agency (the EPA or the Corps) has authority under the Clean Water Act to permit the discharge of those pollutants into the waters of the United States. Petitioners raise essentially two arguments on that issue. They argue initially that suction dredge mining does not come within the EPA’s authority because that activity does not entail the "discharge" or "addition" of a pollutant to the water. They argue alternatively that, even if discharging material resulting from suction dredge mining adds a pollutant to the waters of the United States, the discharge is "dredged material," which the Corps has exclusive authority to permit. We begin with petitioners’ first argument.

I. ADDITION OF A POLLUTANT

Petitioners’ first argument starts from the proposition that the EPA’s permitting authority applies only to the "discharge of a pollutant," and they note that the statutory phrase "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 USC § 1362(12). Petitioners contend that, because suction dredge mining does not add anything to the water that was not already there, there is no addition of any pollutant and thus no discharge of a pollutant for the EPA to permit.

Petitioners’ first argument is problematic. Almost 30 years ago, the United States Court of Appeals for the Ninth Circuit held that, "even if the material discharged [as a result of placer mining] originally comes from the streambed itself, [the] resuspension [of the material in the water] may be interpreted to be an addition of a pollutant under the [Clean Water] Act."

Rybachek v. EPA , 904 F.2d 1276, 1285 (9th Cir 1990) ; accord National Mining Assoc. v. Army Corps of Engineers , 145 F.3d 1399, 1406 (DC Cir 1998) (reaffirming Rybachek while holding that the "addition" of a pollutant does not include incidental fallback of dredged material). As we read Rybachek , the court recognized that the statutory term "addition" is ambiguous, and it deferred to the EPA’s reasonable conclusion that the suspension of solids resulting from placer mining—a practice that includes suction dredge mining—constitutes the "addition" of a pollutant within the meaning of the Clean Water Act.

Since Rybachek , the EPA has confirmed that conclusion. In 2018, in responding to comments regarding the reissuance of a general permit for suction dredge mining in Idaho, the regional office of the EPA reaffirmed that the suspension of solid materials caused by suction dredge mining constitutes the "addition" of a pollutant to the water. EPA, Response to Comments on Idaho Small Suction Dredge General Permit 5 (May 2018).² Similarly, the EPA explained in response to another comment:

"If, during suction dredging, only water was picked up and placed back within the same waterbody, the commenter would be correct that no permit would be necessary. See South Florida Water Management Dist. v. Miccosukee Tribe of Indians , 541 U.S. 95 [124 S.Ct. 1537, 158 L.Ed.2d 264] (2004). However, in suction dredging, bed material is also picked up with water. Picking up the bed material is in fact the very purpose of suction dredging—the bed material is processed to produce gold. This process is an intervening use that causes the addition of pollutants [rock and sand, see CWA § 502(6) ] to be discharged to waters of the United States."

Id. at 6 (bracketed material in original).

We also note that, when the EPA reissued a general permit for suction dredge mining in Idaho in 2018, it prohibited suction dredge mining that resulted in visible turbidity "above background [levels] beyond any point more than...