CHAPTER 8 FEDERAL ENVIRONMENTAL PERMITS FOR WATER USED IN MINERAL RESOURCE DEVELOPMENT
| Jurisdiction | United States |
(Mar 1981)
FEDERAL ENVIRONMENTAL PERMITS FOR WATER USED IN MINERAL RESOURCE DEVELOPMENT
Evans, Kitchel & Jenckes, P.C.
Phoenix, Arizona
Introduction
During the 1970's significant Federal legislation was enacted which regulated by permit the use and discharge of water in mineral resource development. The first significant Federal law passed in this area was the Federal Water Pollution Control Act Amendments of 1972 passed over Presidential veto on October 18, 1972. This law was amended by the Clean Water Act of 1977 ("CWA"). There are two significant permitting programs under this law: the National Pollutant Discharge Elimination System permits ("NPDES permits") under Section 402 and the Dredge and Fill permits under Section 404. On December 16, 1974 the Safe Drinking Water Act was signed into law. Subtitle C of the Safe Drinking Water Act ("SDWA") proscribes a program for permitting the subsurface implacement of fluids. The Resource Conservation and Recovery Act ("RCRA") enacted on October 21, 1976 at Subtitle C provides for a permitting program for the storage, treatment and disposal of hazardous wastes. All four of these Federal permitting programs affect mineral resource development when using water in developing our nation's resources.
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These four permit programs together with the Prevention of Significant Deterioration permit program under the Clean Air Act have now been consolidated into one permit program pursuant to regulations adopted May 19, 1980. The Consolidated Permit Program provides that each facility needing a permit file a single permit application to cover all EPA permitted operations at the facility.
On December 11, 1980, the Comprehensive Environmental Response Compensation and Liability Act of 1980 was enacted into law. This law, known as Superfund, wraps around the above discussed four Federal permitting programs. Under Superfund, discharges of hazardous materials into the environment, except those discharged pursuant to the above four permits, must be immediately reported to the National Response Center.
All four of the above mentioned Federal permitting programs have procedures under the Consolidated Permit Program regulations for states to obtain primary enforcement authority of those programs from the Federal Government. Therefore, in determining whether permits are necessary, it is important to determine whether the State in which the facility is located is one which has received primary enforcement authority from the EPA, in which case the permitting application would be through State authorities.
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In addition to these Federal programs, it is important to note that many States have adopted their own permitting programs for areas which the Federal Government has not yet begun to regulate. For instance, the State of Wyoming has recently adopted an extensive groundwater code which requires permitting for activities which may affect the quality of groundwater. The State of Texas has had a permitting program for the underground injection of pollutants for many years even though the Federal underground injection control program under Sub-title C of SDWA has not yet become federally enforceable. The State of New Mexico has had a groundwater discharge plan program regulating pits, ponds, lagoons and other surface impoundments which may discharge to the groundwater. Recently the State of Arizona has proposed regulations for permitting the industrial reuse of sewage effluent. These are just a few examples of the many areas in which states have regulated the use and discharge of various water sources and these must be considered in permitting a new facility.
Federal Water Pollution Control Act Amendments of 1972
The Federal Water Pollution Control Act Amendments of 1972 was passed by Congress over President Nixon's veto on October 18, 1972. This law totally replaced the then existing Federal Water Pollution Control Act. There was a significant change in the enforcement philosophy
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under this law. The Amendments of 1972 prohibited all discharges to all waters of the United States unless done with a permit. Previously the law had prohibited discharges which reduced the water quality below the standards. This proved to be a difficult law to enforce and few actions were brought under the former law. The Federal Water Pollution Control Act Amendments of 1972 provide for two federally operated permit programs. Under Section 402 of the Act the Environmental Protection Agency issues permits for point source discharges of pollutants into the navigable waters. Under Section 404 the U.S. Army Corps of Engineers issues permits for the discharge of dredge and fill material into the navigable waters.
Section 301 of the Act prohibits "the discharge of any pollutant by any person." To determine what discharges are prohibited, the definitions at Section 502 must be consulted. Pollutant is defined to mean:
"dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water."
A discharge of a pollutant is defined to mean "any addition of any pollutant to navigable waters from any point source". Navigable waters in turn is defined to mean "the waters of the United States." A point source is defined to mean:
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"any discernible, confined, discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well...
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