504 F.3d 1007
SYNOPSIS: On petitioner environmental groups' petition for review of an order of respondent Environmental Protection Agency's (EPA's) Appeals Board, the court considered the issue of whether the EPA had properly issued a National Pollution Discharge Elimination System (NPDES) permit under § 402 of the Clean Water Act, 33 U.S.C.S. § 1342, to intervenor copper mining company.
OVERVIEW: The NPDES permit allowed intervenor to make mining-related discharges of copper into a desert creek, an impaired water body listed as containing excess copper under § 303(d) of the Clean Water Act, 33 U.S.C.S. § 1313(d).
The court held that the total maximum daily load (TMDL) prepared by the EPA violated 40 C.F.R. § 122.4(i), which stated that no NPDES permit could issue to a new discharger if the discharger contributed to the violation of water quality standards regulating the discharge of toxic pollutants under 33 U.S.C.S. § 1251(a)(3).
-It was error for the Appeals Board not to consider additional discharges from diversion channels that intervenor proposed to construct.
-Because the EPA's supplemental environmental assessment addressed only the environmental effect of two new conditions it added after receiving public comment on its draft NPDES permit, rather than the effect of a permit issued to a new discharger under § 122.4(i), the issuance of the NPDES permit to intervenor was based on errors of law under the Clean Water Act, 40 C.F.R. § 122.4(i), and the National Environmental Policy Act, 42 U.S.C.S. §§ 4321-4370f.
OUTCOME: The court vacated and remanded the NPDES permit to the EPA for further proceedings consistent with its opinion.
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