Home » Case Summaries » 2007 » Friends of Pinto Creek v. United States Environmental Protection Agency

 
 

Friends of Pinto Creek v. United States Environmental Protection Agency

 

Friends of Pinto Creek and other environmental groups appealed a decision by the United States Environmental Protection Agency (EPA) to issue a National Pollutant Discharge Elimination System (NPDES) Permit under the Clean Water Act (CWA)[1]to Carlota Copper Company (Carlota). The Ninth Circuit held that EPA improperly issued Carlota’s NPDES permit in violation of CWA regulations[2]and the National Environmental Policy Act (NEPA).[3]The Ninth Circuit thus vacated the permit and remanded to EPA for further proceedings.

Pinto Creek, a desert river sixty miles east of Phoenix, is home to a variety of fish, birds, and wildlife. Because historical mining activities in the region have contaminated Pinto Creek with copper, Pinto Creek is included on Arizona’s list of impaired waters as a water quality limited stream due to nonattainment of water quality standards for dissolved copper. Carlota proposed to build and operate an open-pit copper mine and processing facility covering over 3,000 acres while extracting approximately 100 million tons of ore. As part of the operation, Carlota proposed constructing diversion channels for Pinto Creek to route the creek around the mine. Carlota also planned to construct groundwater cutoff walls that would block the flow of groundwater into the mine and encourage alluvial flow into the diversion channels.

Under NEPA, the United States Forest Service (USFS) prepared a Final Environmental Impact Statement (FEIS) for the project. The Army Corps of Engineers (Corps) prepared an Environmental Assessment (EA) addressing the physical construction of the diversion channels. Because both the diversion channels and groundwater cutoff wells would add copper and other pollutants to the Pinto Creek system, Carlota applied for a NPDES permit under section 402 of the CWA.[4]EPA first adopted USFS’s FEIS and the Corps’s EA and published a draft NPDES permit. In response to comments on the draft NPDES permit, EPA amended the permit by adding two conditions: 1) a requirement for additional groundwater discharges to augment the Pinto Creek stream flow, and 2) a requirement that Carlota perform remediation measures concerning sources of copper loading from an upstream inactive mine site. The Arizona Department of Environmental Quality (DEQ) certified the amended permit met state water quality standards. On July 24, 2000, EPA issued the NPDES permit to Carlota and published a Record of Decision formally adopting the USFS’s FEIS and the Corps’s EA.

On August 24, 2000, petitioners filed their first Petition for Review of the NPDES permit with EPA’s internal appellate board, the Environmental Appeals Board (EAB). EPA did not respond; rather, it withdrew portions of the permit, stating the permit was not severable from the contested conditions, and indicated that the permit should be stayed pending final agency action. Next, EPA prepared a supplemental EA and provided public comment opportunities for the two new permit conditions and the supplemental EA only. In response to petitioners’ concerns, EPA promulgated a total maximum daily load (TMDL) for copper discharges into Pinto Creek. On February 27, 2002, EPA issued a Finding of No Significant Impact (FONSI) and issued Carlota’s NPDES permit. On April 1, 2002, petitioners filed their second Petition for Review with the EAB challenging EPA’s decision to issue the Carlota permit. The EAB denied review of the petition and petitioners filed an appeal with the Ninth Circuit.

The Ninth Circuit first considered the CWA’s objectives and the requirements of its implementing regulations. The CWA aims to “maintain the chemical, physical, and biological integrity of the nation’s waters,”[5]which includes prohibiting the “discharge of toxic pollutants in toxic amounts” into navigable waters.[6]Consistent with these objectives, CWA regulations address the situation where a new source seeks a permit to discharge pollutants into waters already exceeding the water quality standards for those pollutants.[7]Under these regulations, no permit may be issued “[t]o a new source or a new discharger if the discharge from its construction or operation will cause or contribute to the violation of water quality standards[;]”[8]however, an exception is available if, before the close of the comment period, the permit applicant demonstrates a TMDL has been established and “(1) [t]here are sufficient remaining pollutant load allocations to allow for the discharge; and (2) [t]he existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.”[9]

The Ninth Circuit held EPA’s issuance of the permit to discharge copper into Pinto Creek violated the CWA because the permit was not issued in compliance with 40 C.F.R. § 122.4(i). The Ninth Circuit began by noting that the plain language of the regulations prohibits permitting any discharge that will contributed to a violation of water quality standards, and this prohibition precludes EPA’s argument that the permit was proper because the remediation from the upstream mine would create a pollution offset. The Ninth Circuit held that even if remediation does offset pollution into Pinto Creek, nothing in the CWA or CWA regulations “provides an exception for an offset when the waters remain impaired and the new source is discharging pollution into that impaired water.”[10]

Next, the Ninth Circuit rejected EPA’s assertion that the exception applied to Carlota’s permit. The first clause of the exception was not met because, although the TMDL provides a method under which allocations could be established, there was no indication of any plan effectuating these allocations that would bring Pinto Creek into compliance with applicable water quality standards. Further, the second clause of the exception was not met because, contrary to EPA’s assertion that the section applies only to permitted point sources, the Ninth Circuit determined that the regulation requires compliance schedules for both permitted and unpermitted point source discharges and not all existing point sources were subject to compliance schedules to bring Pinto Creek into compliance. The court, noting the objective of section 122.4(i) is “not simply to show a lessening of pollution, but to show how the water quality standard will be met if Carlota is allowed to discharge pollutants into the impaired waters[,]”[11]concluded that EPA had not required Carlota to fulfill all the requirements of section 122.4(i) before issuing the permit. As such, EPA erred in issuing the NPDES permit to Carlota. Finally, the court rejected EPA’s argument that this decision improperly seeks to compel EPA to initiate an enforcement action against unpermitted point sources illegally discharging into Pinto creek. Here, the regulatory requirements are preconditions to permit issuance, and there is no compulsion against EPA to act against violators.

Next, the Ninth Circuit examined petitioners’ claim that EPA failed to consider additional sources of copper pollution coming from alluvial flows of groundwater into Pinto Creek as the result of Carlota’s proposed construction of a cutoff wall blocking groundwater flow into the mine area. The EAB dismissed this claim because it was not raised in the initial comment period; rather, it was raised in the comment period following EPA’s establishment of the TMDL. Because this was an unpermitted point source discharge for which a compliance schedule must be established to meet the second clause of the exception, the Ninth Circuit determined that the claim was properly brought in the comment period after establishment of the TMDL, and the EAB erred in dismissing the claim.

Finally, the Ninth Circuit held the EAB erred in not considering the additional discharges from the diversions and cutoff walls. Under NEPA, an agency conducts an EA to determine whether its action requires an EIS.[12]If the EA indicates the action may have a significant environmental impact, an EIS is required.[13]Although the USFS’s FEIS considered the proposed Carlota project’s impact on Pinto Creek waters, the Ninth Circuit held that EPA should have included an analysis of the revised permit conditions in its EA. Thus, the EAB erred in refusing to consider petitioners’ argument that EPA failed to take a “hard look” at the potential discharges from the two diversion channels and cutoff walls.[14]


[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

[2] 40 C.F.R. § 122.4(i) (2007).

[3] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[4] 33 U.S.C. § 1342 (2000).

[5] Id.§ 1251.

[6]Id.

[7]See 40 C.F.R. § 122.4(i) (2007).

[8]Id.

[9]Id.

[10] Friends of Pinto Creek v. Envtl.Prot. Agency (Pinto Creek), 504 F.3d 1007, 1012 (9th Cir. 2007)

[11]Id. at 1014.

[12] 40 C.F.R. § 1508.9 (2007).

[13] National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) (2000).

[14]Pinto Creek, 504 F.3d at 1017.

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