In re HECLA Mining Co., Lucky Friday Mine
On January 26, 2006, Hecla Mining Company, Lucky Friday Unit (“Hecla”), filed a timely petition for review of the decision of U.S. EPA Region 10 (“Region”) to issue a final Clean Water Act (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permit, dated December 28, 2005 (the “2005 Permit”), to Hecla. The 2005 Permit would authorize Hecla to discharge treated wastewater from Hecla’s Lucky Friday Mine and Mill, located in Shoshone County, Idaho, into the South Fork Coeur d’Alene River. Hecla alleges that certain conditions of the 2005 Permit are clearly erroneous or otherwise warrant Environmental Appeals Board (“Board”) review. In particular, Hecla seeks Board review on the following three issues: (1) the 2005 Permit’s use of total recoverable metals rather than dissolved metals to express effluent limits; (2) the 2005 Permit’s upper limit for pH; and (3) the 2005 Permit’s inclusion of a requirement for both bioassessment monitoring and whole effluent toxicity (“WET”) testing. The Board held oral argument on this matter on July 13, 2006.
Held: Hecla’s petition for review is denied. The Board finds that Hecla has not shown any clear error, abuse of discretion, or important policy matter warranting Board review of the permit. In particular:
(1) The 2005 Permit expresses the effluent limits for metals as “total recoverable metals.” According to Hecla, the permit limits should have been expressed as “dissolved” metals. Hecla argues that, under 40 C.F.R. § 122.45, the Region has the “discretion” to express the effluent limits as dissolved metals, rather than as total recoverable metals, and that the Region’s failure to do so was “unwarranted” under the circumstances of this case where both the site-specific criteria and in-stream standards under Idaho’s water quality standards are expressed as dissolved metals. Section 122.45(c)(1) provides that “All permit effluent limitations, standards, or prohibitions for a metal shall be expressed in terms of ‘total recoverable metal’ * * * unless: (1) An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent or total form.” Hecla argues that because Idaho’s applicable water quality standards are expressed in “dissolved” form, the exception under paragraph (1) is applicable and the Region had discretion to state the permit limits as “dissolved” metals. The Board rejects this argument.
The regulatory exception quoted above applies only where an “effluent standard or limitation has been promulgated under the CWA.” A water quality standard, however, is not the equivalent of an effluent limitation or standard. Rather, site-specific effluent limitations, such as the metals limitation at issue here, are a means of achieving a state’s water quality standards. Thus, the discretion afforded by §122.45(c)(1) does not apply. Accordingly, the Board concludes that Hecla has failed to establish that the permit condition at issue was clearly erroneous or otherwise warrants review.
(2) Hecla seeks an increase in the 2005 Permit’s upper limit for pH from 9.0 standard units (“s.u.”) to 10 s.u. Hecla points out that, under certain circumstances, the regulations provide a basis for increasing the upper pH limitation beyond 9.0 s.u. In particular, under 40 C.F.R. § 440.131(d), “Where the application of neutralization and sedimentation technology to comply with relevant metal limitations results in an inability to comply with the pH range of 6 to 9, the permit issuer may allow the pH level in the final effluent to slightly exceed 9.0 so that the copper, lead, zinc, mercury, and cadmium limitations will be achieved.” Upon consideration of the record, the Board cannot conclude that the Region clearly erred in declining to relax the pH limit. In particular, the Board finds that Hecla has not committed itself to using neutralization and sedimentation technology as its compliance vehicle. Further, the Board concludes that Hecla has failed to establish that the utilization of neutralization and sedimentation technology would necessarily “result in an inability to comply with the pH range of 6 to 9.” Under these circumstances, Hecla has not demonstrated that the Region’s determination to include an upper pH limitation of 9.0 was clearly erroneous or otherwise warrants Board review.
(3) Hecla objects to the inclusion of a permit condition requiring WET testing. In particular, Hecla argues that the 2005 Permit’s WET testing requirement is duplicative of the permit’s bioassessment monitoring requirement and is not “legally or factually justified.” Because Hecla’s arguments on this issue merely restate comments made during the comment period without indicating why the Region’s response to those comments was clearly erroneous or otherwise warrants review, review is denied. While this alone is a sufficient basis for denying review, the Board notes further that it generally accords deference to the permitting authority on technical judgments of this kind and Hecla has not demonstrated any error in the Region’s determination.