EPA's New Source Performance Standard Does Not Apply To Discharges of Mining Slurry Regulated Under Section 404 of The Clean Water Act

On June 22, 2009, the United States Supreme Court held that the new source pollution standards in Section 306(b) of the Clean Water Act (the “CWA”) did not apply to discharges of slurry from a rehabilitated “froth-flotation” gold mine into a nearby navigable lake. It did so because these discharges are properly regulated under Section 404 of the CWA governing the discharge of dredge and fill materials, rather than by an NPDES permit under Section 402 of the CWA, and because the new source pollution standard in Section 306(b) does not apply to Section 404 permits. The Supreme Court's decision reversed the Ninth Circuit Court of Appeal's determination that the issuance of a permit for the slurry discharges by the United States Army Corps of Engineers (the “Corps”) under Section 404 of the CWA violated the new source performance standard set forth in Section 306 of the CWA. In the dissenting opinion, Justices Ginsburg, Stevens and Souter disagreed with the majority's holding, emphasizing the potentially weighty implication of the outcome, which they argued effectively allowed the operator of the mine to utilize Section 404 of the CWA to evade the more stringent requirements of the new source performance standard.

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