Eagle Mine LLC (Board decision, June 5, 2015)

Plain-English summary

Save the Wild U.P. asked the Environmental Appeals Board to review a groundwater discharge permit that Michigan issued to Eagle Mine LLC. The petitioner argued that the discharge should instead be regulated under an NPDES permit and asked the Board to require Michigan or EPA to act. The Board explained that its permit-review authority under 40 C.F.R. part 124 did not cover this state groundwater permit or the EPA Region’s letter about the permit. The Board dismissed the petition for lack of jurisdiction.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.2(a), 124.15, 124.19(a), 124.19(a)(1), 1.25(e)(1); 33 U.S.C. §§ 1342, 1365
• Outcome: The petition for review was dismissed for lack of jurisdiction.
• Key point: The EAB’s permit-review jurisdiction under part 124 did not extend to this state groundwater permit or the asserted failure to issue an NPDES permit.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC

In re:

Eagle Mine LLC UIC Appeal No. 15-01

                                                 )

Clerk, Environmental Appeals Board
Permit No. GW1810162 INITIALS [illegible]
)

                ORDER DISMISSING PETITION FOR REVIEW

   On April 24, 2015, Save the Wild U.P. filed with the Environmental Appeals Board

("Board") a petition for review of the above-captioned groundwater discharge permit ("Permit") that the Michigan Department of Environmental Quality ("MDEQ") issued to Eagle Mine LLC ("Eagle Mine") on March 25, 2015. The Permit authorizes discharge of mine contact water from the Eagle Mine Wastewater Treatment Facility ("Facility") to groundwaters of the State of Michigan. Petition at 2. On May 27, 2015, the U.S. Environmental Protection Agency ("EPA"), Region 5 ("Region"), filed a motion to dismiss the petition on grounds that the Board lacks jurisdiction. 1 On June 1, 2015, the Keweenaw Bay Indian Community filed a letter in support of the petition.

Petitioner's primary argument in this appeal is that the issued groundwater Permit "is the wrong tool with which to regulate Eagle Mine's wastewater discharges." Petition at 26.

Petitioner contends that the appropriate permit for the discharge is a National Pollutant Discharge

Elimination System ("NPDES") permit issued pursuant to Clean Water Act section 402, 33 U.S.C. § 1342. See generally Petition at 2-3, 16, 20, 23, 26. Petitioner cites 40 C.F.R.
§ 124.19(a) as the basis for the Board's authority to review this petition.

Petitioner also argues that a letter from the Region to Jeffrey Loman, a supporter and former advisory board member of Save the Wild U.P., stating that wastewater discharges from the Facility are not subject to the NPDES permitting program is a basis for the Board's review. Id. at 7. In the letter, the Region stated:

An NPDES permit is needed for a discharge to groundwater where there is a

direct hydrologic connection between groundwater and waters of the United

States. We have considered the potential applicability of the Clean Water Act's

NPDES program to the process wastewater being generated by the Eagle Mine

and discharged to groundwater. We do not believe that there is evidence of a

direct discharge from this treatment unit to surface waters at this time. Further,

MDEQ has taken steps through the groundwater permitting process to protect

surface water by including limits in the groundwater permit based on surface

water standards.

Letter from Tinka G. Hyde, Director, Water Division, Region 5, U.S. EPA, to Jeffrey Loman (Feb. 21, 2014) (Pet. attach. 8) ("February 2014 Letter"). Petitioner characterizes the Region's letter as "equivalent to a final agency action" but also states that "even if this letter does not serve as a final agency action, a final agency action is not a proper prerequisite for review since this is
[a] 'failure to act' petition." Petition at 7. Petitioner requests that the Board "exercise its authority under 40 C.F.R. § 124.2(a)" and either order "MDEQ to require Eagle Mine to obtain an NPDES permit * * * or [order] EPA to intervene and do so itself in accord with 40 C.F.R.

§ 122." Id.

The Board disagrees with all of the above arguments. The Board is a tribunal of limited

jurisdiction, and its authority to review permit decisions is "limited by the statutes, regulations,

and delegations that authorize and provide standards for such review." In re Michigan CAFO

General Permit, NPDES Appeal No. 02-11, at 3 (EAB Mar. 18, 2003) (Order Dismissing

Petition for Review) (quoting In re Carlton, Inc., 9 E.A.D. 690, 692 (EAB 2001) (internal

quotations omitted)); see also Changes to Regulations to Reflect the Role of the New

Environmental Appeals Board in Agency Adjudications, 57 Fed. Reg. 5,320, 5,320-21 (Feb. 13,

1992). Under 40 C.F.R. part 124, the Board is authorized to review final Resource Conservation

and Recovery Act, Underground Injection Control, Clean Water Act NPDES, and Clean Air Act

Prevention of Significant Deterioration permit decisions issued under 40 C.F.R. § 124.15.

40 C.F.R. § 124.19(a)(1).

   Petitioner concedes that the Permit authorizes groundwater discharge to waters of the

State of Michigan and was not issued pursuant to the Clean Water Act NPDES program. E.g.,

Petition at 2, 7, 8. Nor is the Permit one of the other aforementioned types of final permit

decisions the Board is authorized to review under part 124.19. See 40 C.F.R. § 124.19(a)(1).

Moreover, Petitioner does not identify any other document that served as such a permit decision.

   The Board need not determine whether the Region's letter is, as Petitioner argues, a final

agency action. The Board declines review of both the letter and the permit on two grounds.

First, neither document constitutes a final permit decision under section 124.15. Second, the

Board is also not the appropriate forum for considering the Region's alleged failure to act. See

CWA § 505(a), 33 U.S.C. § 1365 (discussing jurisdiction for civil actions alleging failure to

perform a nondiscretionary act or duty under the Clean Water Act). 2

2 Any argument that Petitioner is seeking review of an NPDES permit decision also would fail, as MDEQ administers the NPDES permits program in lieu of EPA. Discharges of Pollutants to Navigable Waters, 39 Fed. Reg. 26,061 (July 16, 1974); see also Approval of Modifications to Michigan's Approved Program to Administer the NPDES Permitting Program Resulting from the Reorganization of Michigan Environmental Agencies, 62 Fed. Reg. 61,170 (Nov. 14, 1997) (approving modification transferring program authority from the Michigan Department of Natural Resources to the Department of Environmental Quality). Although the Michigan NPDES permit program is federally approved, even if MDEQ had issued the Permit as an NPDES permit, it nonetheless would be a state permit issued under state law and not within the Board's authority to review. See, e.g., In re Michigan CAFO General Permit, NPDES Appeal No. 02-01 (Mar. 18, 2003) (Order Dismissing Petition for Review); In re Town of Seabrook, 4 E.A.D. 806, 817 (EAB 1993).

For the foregoing reasons, the Board dismisses the Petition for lack of jurisdiction.

So ordered.

Dated: June 5, 2015

ENVIRONMENTAL APPEALS BOARD 3

By: [signature]
Leslye M. Fraser
Environmental Appeals Judge

3 The two-member panel deciding this matter consists of Environmental Appeals Judges Leslye M. Fraser and Kathie A. Stein. 40 C.F.R. § 1.25(e)(1).

                           CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Dismissing Petition for Review in the matter of In re Eagle Mine LLC, UIC Appeal No. 15-01, were sent to the following persons in the manner indicated:

By U.S. First Class Certified Mail, Return Receipt Requested: Kathleen Heideman

Alexandra Maxwell
Save the Wild U.P.
P.O. Box 562
Marquette, MI 49855

Warren C. Shwartz, Jr., President
Keweenaw Bay Indian Community
Keweenaw Bay Tribal Center
16429 Beartown Road
Baraga, MI 49908

By U.S. First Class Mail:
Dan Wyant, Director

Michigan Department of Environmental Quality
P.O. Box 30473
Lansing, MI 48909-7973

Paul Conibear, President & CEO
Lundin Mining Corporation

150 King Street West, Suite 1500
P.O. Box 38

Toronto, ON M5H 1J9
CANADA

By EPA Pouch Mail:
Robert L. Thompson

Office of Regional Counsel

U.S. Environmental Protection Agency, Region 5
77 West Jackson Boulevard (C-14J)

Chicago, IL 60604

Annette Duncan
Secretary