Thank You For Submiting Feedback!
The plain language of the first sentence of 40 C.F.R. § 122.4(i) states that no National Pollution Discharge Elimination System permit may be issued to a new discharger if the discharge will contribute to the violation of water quality standards. This corresponds to the stated objectives of the Clean Water Act, 33 U.S.C.S. § 1251(a), to restore and maintain the chemical, physical, and biological integrity of the nation's waters. It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited. 33 U.S.C.S. § 1251(a)(3).
Pinto Creek is a desert river located near Miami, Arizona, approximately 60 miles east of Phoenix. It has been listed by the American Rivers Organization as one of the country's most endangered rivers due to threats from proposed mining operations. Pinto Creek and its riparian environs are home to a variety of fish, birds, and other wildlife, some of which are specially protected. Due to excessive copper contamination from historical mining activities in the region, Pinto Creek is included on Arizona's list of impaired waters under § 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d), as a water quality limited stream due to non-attainment of water quality standards for dissolved copper. Carlota Copper Company ("Carlota") proposed to construct and operate an open-pit copper mine and processing facility approximately six miles west of Miami, Arizona, covering over 3000 acres while extracting about 100 million tons of ore. Part of the operation plan includes constructing diversion channels for Pinto Creek to route the stream around the mine, as well as groundwater cutoff walls to block the flow of groundwater into the mine. In compliance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the U.S. Forest Service prepared an Environmental Impact Statement ("EIS"), after determining the project would potentially have a significant impact on the environment, and later finalized the document as its Final EIS ("Forest Service FEIS"). The Army Corps of Engineers also prepared an Environmental Assessment ("Corps EA") covering the physical construction of proposed diversion channels redirecting water from Pinto Creek and the Powers Gulch stream around the mine and into Pinto Creek. Because the proposed action would involve the discharge of pollutants into Pinto Creek, Carlota applied to the Environmental Protection Agency ("EPA") for a National Pollution Discharge Elimination System ("NPDES") permit under § 402 of the Clean Water Act, 33 U.S.C. § 1342, in 1996. The EPA ultimately issued the permit, and the Environmental Appeals Board ("Appeals Board"), the internal appellate board of the EPA, denied review.
Did the EPA properly issue an NPDES permit under the Clean Water Act to Carlota?
The court held that the total maximum daily load (TMDL) prepared by the EPA violated 40 C.F.R. § 122.4(i), which stated that no NPDES permit could issue to a new discharger if the discharger contributed to the violation of water quality standards regulating the discharge of toxic pollutants under 33 U.S.C.S. § 1251(a)(3). In addition, it was error for the Appeals Board not to consider additional discharges from diversion channels that intervenor proposed to construct. Because the EPA's supplemental environmental assessment addressed only the environmental effect of two new conditions it added after receiving public comment on its draft NPDES permit, rather than the effect of a permit issued to a new discharger under § 122.4(i), the issuance of the NPDES permit to intervenor was based on errors of law under the Clean Water Act, 40 C.F.R. § 122.4(i), and the National Environmental Policy Act, 42 U.S.C.S. §§ 4321-4370f.