Friends of Pinto Creek v. United States Environmental Protection Agency
504 F.3d 1007 (2007)
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Rule of Law:
Under the Clean Water Act, a permit cannot be issued to a new source discharging a pollutant into a waterbody that is already in violation of water quality standards for that pollutant, unless the applicant demonstrates both that there are sufficient remaining pollutant load allocations and that existing dischargers are subject to compliance schedules designed to bring the waterbody into compliance. A proposal to 'offset' the new pollution by remediating another pollution source is not a substitute for these requirements.
Facts:
- Pinto Creek, a river in Arizona, was officially listed as an 'impaired water' under the Clean Water Act because its concentration of dissolved copper exceeded established water quality standards due to historical mining.
- Carlota Copper Company proposed to construct and operate a new large-scale, open-pit copper mine near Pinto Creek.
- The proposed mining operation included discharging pollutants, including dissolved copper, into Pinto Creek.
- Carlota's plan also involved constructing diversion channels and groundwater cut-off walls that would route additional copper-contaminated groundwater into Pinto Creek.
- As a condition of its permit, Carlota was required to remediate (clean up) sources of copper pollution from an unrelated, inactive upstream site called the Gibson Mine, in an effort to offset its new discharges.
- At the time the permit was issued, other existing sources of copper pollution into Pinto Creek were not subject to any established compliance schedules designed to bring the creek into compliance with water quality standards.
Procedural Posture:
- Carlota Copper Company applied to the Environmental Protection Agency (EPA) for a National Pollution Discharge Elimination System (NPDES) permit.
- The EPA issued a draft permit, received public comments, added an offset condition, and issued a final permit on July 24, 2000.
- Petitioners filed a Petition for Review of the permit with the EPA's internal Environmental Appeals Board ('Appeals Board').
- In response, the EPA withdrew the permit, prepared a Total Maximum Daily Load (TMDL) for copper in Pinto Creek, and issued a revised permit on February 27, 2002.
- Petitioners filed a second Petition for Review with the Appeals Board, challenging the re-issued permit.
- On September 30, 2004, the Appeals Board denied review, thereby finalizing the EPA's decision to issue the permit.
- Petitioners then filed for review of the agency's final action in the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does the Environmental Protection Agency violate the Clean Water Act and its implementing regulations, specifically 40 C.F.R. § 122.4(i), by issuing a new discharge permit for copper into a waterbody that already exceeds the water quality standard for copper, when the permit relies on an offset but fails to show that existing dischargers are subject to compliance schedules designed to bring the waterbody into compliance?
Opinions:
Majority - Hug, Circuit Judge
Yes. The issuance of the permit violates the Clean Water Act because the plain language of 40 C.F.R. § 122.4(i) sets forth specific, mandatory conditions for issuing a new permit in an impaired waterway that were not met. The regulation establishes a general ban on new discharges that contribute to a violation of water quality standards. It provides a narrow, two-part exception: the discharger must demonstrate that (1) there are sufficient remaining pollutant load allocations, and (2) existing dischargers are subject to compliance schedules designed to bring the waterbody into compliance. The court found that Carlota and the EPA failed to satisfy the second condition, as there were no such compliance schedules in place for other polluters on Pinto Creek. The court explicitly rejected the EPA's argument that offsetting the new pollution by cleaning up the Gibson Mine could substitute for the regulation's clear requirements, stating the objective is not merely to lessen pollution, but to achieve the water quality standard.
Analysis:
This decision significantly clarifies and reinforces the high bar for obtaining new discharge permits for already-polluted waters under the Clean Water Act. It establishes that a pollution offset scheme, even one resulting in a net environmental benefit, cannot be used to circumvent the specific regulatory requirements of 40 C.F.R. § 122.4(i). The ruling effectively requires a comprehensive plan to be in place to bring an impaired waterbody into compliance before new pollution sources can be added. This precedent makes it more difficult for industrial development to proceed in areas with legacy pollution unless regulatory agencies have already established enforceable cleanup plans for existing polluters.
