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Page 7 504 F.3d 1007, 65 ERC 1289, 07 Cal. Daily Op. Serv. 11,947, 2007 Daily Journal D.A.R. 15,420 (Cite as: 504 F.3d 1007) 122.4(i)(2). In this case, the Petitioners do not argue for an abso- lute ban on discharges into a waterway that is in vi- olation of the water quality standards. Rather, the Petitioners point to the 122.46) exception by which a new discharger can comply with the Clean Water Act requirements. Those requirements simply were not met. Thus, no conflict exists with the Supreme Court's opinion in Arkansas v. Oklahoma. C. Pollution From the Diversion Channels. Carlota proposed to construct two diversion channels that would divert surface and groundwater around the mine facilities. The Pinto Creek diversion channel would extend approximately 5250 feet and then into Pinto Creek. The Powers Gulch stream diversion channel would extend approximately 7900 feet into the Powers Gulch stream, which eventually connects to Pinto Creek. Both channels will eventually add pollutants, including copper, into Pinto Creek espe- cially from the groundwater that Carlota will be di- recting into the channels for discharge into Pinto Creek. In order to block groundwater from entering the main Carlota Mine pit, Carlota will construct a cutoff wall down to bedrock that will divert the groundwater to the surface and into the Pinto Creek diversion channel. The Forest Service HIS stated: "The cutoff wall would be an impermeable barrier extending from the surface down through the alluvium and into the be- drock. The cutoff wall would be designed to prevent water from moving toward the pit and would en- courage the alluvial flow to surface into the diversion channel to be routed around the pit." Fed. Envtl. Im- pact Statement for Carlota Copper Project, Vol. 1, Ch. 2, p. 16 (1997). The Forest Service FEIS also noted that the alluvial groundwater that will enter the diversion channel contains dozens of pollutants, in- cluding copper, that will be added to Pinto Creek. According to the Forest Service FEIS, the amount of dissolved copper in this groundwater would be sig- nificant. In addition to the groundwater directed into Pinto Creek via the Pinto Creek diversion channel, a similar cutoff wall is proposed to direct groundwater into the Powers Gulch stream diversion channel and ultimately into Pinto Creek. Like the groundwater added to the Pinto Creek via the Pinto Creek diversion channel, the groundwater added to the Powers Gulch stream contains elevated levels of copper and other pollutants. The EPA did not consider the copper con- tributions from the use of the proposed diversion channels and groundwater cutoffs. The Appeals Board refused to consider these additional sources of copper pollution because it was not raised in the first com- ment period for the permit. *1016 In the Petitioners' first Petition for Review of the NPDES permit and the NEPA documents before the Appeals Board, the Petitioners contended, among other things, that the EPA had not allowed a comment period on the two new conditions added to the permit and that the EPA should establish a TMDL for copper discharges into Pinto Creek before issuing Carlota's permit. The EPA did not respond and, instead, with- drew portions of the challenged NPDES permit stating that the permit was not severable from the contested conditions and that the permit should be stayed until pending final agency action. After establishing a TMDL for copper in Pinto Creek, Carlota then pursued a renewal of the permit based upon 40 C.F.R. ? 122.4(1). Carlota has conceded that for the purpose of this decision 122.46), including clauses (1) and (2), is applicable. Carlota was thus proceeding on the basis that a TMDL had been issued and that it was required to comply with clauses (1) and (2). Section 122.4(1) requires that a new discharger into impaired waters for which a pollutant's load al- location for the pollutant to be discharged "must demonstrate, before the close of the comment period," the compliance with clauses (1) and (2). 40 C.F.R. & 122.46) (2000) (emphasis added). The comment pe- riod referred to could not have been the initial com- ment period before a TMDL was sought or estab- lished. The comment period had to relate to the new basis for Carlota's permit under 122.46). f 21 All of the claims that the Petitioners now rely upon were raised during the comment period after the TMDL was performed. They could not have been raised in the first comment period. These claims were made known to the EPA not only in the second comment period but also at the time of the preparation of the TMDL by a letter that raised the point, a copy of which was furnished directly to the EPA. Thus, the claim with regard to the copper discharge from the diversion channels and the cutoff walls was timely raised and should not have been deemed forfeited, but it should have been considered by the Appeals Board. 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.