2010-08-24_HYDROLOGY - M1977300

• Permit No: M1977300
• IBM Index Class Name: Hydrology
• Doc Date: 8/24/2010
• Doc Name: Comments for your Consideration to Public Notice No. CO-07-10 Permit No. CO-0001244 Cotter
• From: Denver Water
• To: WQCD
• Permit Index Doc Type: Hydrology Report
• Email Name: AJW
• Media Type: D
• Archive: No

Page 8
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)
This would be important in determining whether the
requirement for compliance schedules set out in §
122.4(1)(2) had been met and also it would be impor-
tant in determining the extent of the pollutants con-
tributed by Carlota that would be offset by the Gibson
Mine remediation.
D. The State of Arizona's Requirements.
In addition to violating 40 C.F.R. & 122.4(1), the Peti-
tioners contend that the permit also violates the pro-
visions of 40 C.F.R. & 122.4(d), which provides that
no permit may be issued "[w]hen the imposition of
conditions cannot ensure compliance with the appli-
cable water quality requirements of all affected
States." 40 C.F.R. § 122.4(d) (2000). This must be
considered in connection with 122.4 a , which states
that no permit may be issued "when the conditions of
the permit do not provide for compliance with the
applicable requirements of the Clean Water Act or
regulations promulgated under the Clean Water
Act." Id. at & 122.4(a). Thus, the requirements of I
122.4(d) are in addition to complying with all of the
requirements of the Clean Water Act and the regula-
tions promulgated under the Clean Water Act.
Since we here hold that the permit does not comply
with 122.46), the additional requirement of §,
122.4(d) need not be considered at this time. It would
be appropriate to consider the requirements of
122.4(d) if a permit is properly issued under
122.46).
E. Compliance With the Requirements of NEPA.
NEPA requires agencies to examine potential envi-
ronmental effects of any proposed* 1017 action, and to
inform the public of its studies and resulting concerns.
If any agency determines that its action may have a
significant impact on the environment, the agency is
required to prepare an EIS describing the impacts of
the action and possible alternatives. 42 U.S.C. &
4332(2)(C) (1975). To determine if the action will
require an EIS, the agency may first prepare an envi-
ronmental assessment ("EA"). 40 C.F.R. & 1508.9
(1998) If the EA indicates that there will not be a
significant impact on the environment, the agency
may issue a Finding of No Significant Impact, in
which case an EIS is not required. 40 C.F.R. & 1508.13
.
(1998)
In the first appellate review before the Appeals Board,
the Petitioners challenged the EPA's failure to allow
comments on the two new permit conditions and also
the failure to conduct a TMDL prior to issuing the
permit. The supplemental EA issued by the EPA ad-
dressed only the environmental effect of the two new
conditions, not the effect of a permit issued to a new
discharger under 122.46) including clauses (1) and
(2). There is nothing wrong with incorporating and
relying upon the Forest Service FEIS because it had
discussed the effect on waters by the proposed Car-
Iota Mine. However, the EA produced by the EPA
should have discussed the revised permit issued under
122.46), including clauses (1) and (2).
The Petitioners argued that the EPA failed to take a
"hard look" at its failure to consider the discharges
from the two diversion channels, including the walls
to be established to prevent groundwater from reach-
ing the mine facilities, which would contribute alluvial
water, including copper pollution, to Pinto Creek. The
Appeals Board refused to consider this argument
because it contended that it had not been raised during
the first comment period. As we have previously ex-
plained, it was not possible to comment upon the
request for a permit based upon the TMDL and the
requirements of 122.46) until after the TMDL had
been issued. Thus, for the reasons we expressed in the
prior section, it was error for the Appeals Board not to
consider additional discharges from the diversion
channels.
The Petitioners also raised other questions concerning
the compliance with NEPA, such as reasonable al-
ternatives to the proposed action. Because we have
held that the permit was improperly issued under the
provisions of 122.46), including clauses (1) and (2),
these NEPA issues need not be considered at this time.
V. CONCLUSION
Because the issuance of the NPDES Permit to Carlota
Copper Mine was based on errors of law under the
Clean Water Act, 40 C.F.R. & 122.4(1), and the
NEPA, we vacate and remand the permit to the EPA
for further proceedings consistent with this opinion.
VACATED and REMANDED.
C.A.9,2007.
Friends of Pinto Creek v. U.S. E.P.A.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.