Rybachek v. United States Environmental Protection Agency

Placer mining—a process of mining alluvial or glacial deposits—involved the use of sluicing. Sluicing entailed the pouring of water over paydirt in a box, causing gold and other heavy materials to fall into submerged dams called riffles. The remaining materials and the water were then discharged into nearby lakes and streams. These discharges led to concerns over the introduction of toxic materials into the water. The United States Environmental Protection Agency (EPA) (defendant), acting under the Clean Water Act (CWA), responded by placing strict limitations in National Pollutant Discharge Elimination System (NPDES) permits for the discharge of solids from sluice boxes. The EPA arrived at the limitations through a notice-and-comment rulemaking process in which it proposed and sought public comment on the best practicable control technology (BPT) available within the industry, the best available technology (BAT) that was economically achievable, and the best conventional pollution-control technology (BCT). The EPA’s final rule, among other things, adopted best management practices (BMPs) and determined that recycling technology was the BAT for all mines. When issuing the final rule, the EPA added over 6,000 pages of supporting documentation to the administrative record. The Alaska Miners Association, Stanley Rybachek, and Rosalie Rybachek (collectively, Rybachek) (plaintiffs) petitioned the United States Court of Appeals for the Ninth Circuit for review of the EPA regulations. Rybachek challenged the EPA’s authority to adopt the regulations and also alleged that the notice-and-comment procedure violated their due-process rights because the EPA (1) added pages to the administrative record after the comment period closed, (2) did not provide the specific wording of the BMPs before adopting the final rule, and (3) adopted recycling as the BAT for all mines when prior public notices suggested recycling was not economically feasible for small mines.