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Friends of Pinto Creek v. EPA

ELR Citation: 37 ELR 20255
Nos. No. 05-70785, (9th Cir., 10/04/2007)

The Ninth Circuit vacated a national pollutant discharge elimination system permit the U.S. Environmental Protection Agency (EPA) issued to a mining company allowing it to discharge copper into Arizona's Pinto Creek, a waterbody already in excess of water quality standards for copper. The applicable regulation, 40 C.F.R. §122.4, states that no permit may be issued to a new discharger if the discharge will contribute to the violation of water quality standards. EPA argued that the partial remediation of the discharge from the mine will offset the pollution. However, there is nothing in the Clean Water Act or the regulation that provides an exception for an offset when the waters remain impaired and the new source is discharging pollution into that impaired water. An exception is allowed where the owner or operator can demonstrate that there are sufficient remaining pollutant load allocations to allow for the discharge and that the existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. But neither of those conditions has been met in this case.