Petition for Writ of Certiorari — San Carlos Apache Tribe, Petitioner v. Arizona, et al.

Supreme Court briefSep 25, 2024

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SAN CARLOS APACHE TRIBE

STATE OF ARIZONA, ET AL.,

Petitioner,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

ALEXANDER B. RITCHIE

BERNARDO M. VELASCO (application pending)

DEPARTMENT OF JUSTICE

SAN CARLOS APACHE TRIBE

Post Office Box 40

16 San Carlos Avenue

San Carlos, Arizona 85550

(928) 475-3344

alex.ritchie@scat-nsn.gov

bern.velasco@scat-nsn.gov

Counsel for Petitioners

QUESTIONS PRESENTED

Queen Creek is sacred to members of the San

Carlos Apache Tribe. For over a century, nearby

mines have discharged copper into Queen Creek,

causing it to fail water quality standards, harming

Apache Holy Beings (Ga’an), and interfering with

traditional Apache religious beliefs. The policy of the

United States is that the chemical, physical, and

biological integrity of Queen Creek be restored and

maintained. See 33 U.S.C. § 1251(a). Accordingly,

federal regulations impose strict requirements on new

sources of pollution before they discharge into

impaired waterways. See, e.g., 40 C.F.R. § 122.4(i),

Part 440.

In 2007, Resolution Copper Mining, LLC

(“Resolution”) began constructing one of the largest

copper mines in modern history near an old mine that

had been exhausted in 1996. In 2017, Resolution

applied to the Arizona Department of Environmental

Quality (“ADEQ”) to renew the old mine’s discharge

permit and included the new mine with it.

Rather than conduct a “new source analysis” as

required by governing regulations, ADEQ capitulated

and renewed the permit, treating the new mine as

part of the existing source. The Arizona Supreme

Court affirmed, also departing from the regulation’s

plain text, thereby committing an error of law. Rather

than consider whether the new mine is operationally

independent, as 40 C.F.R. § 122.29(b) requires, the

court invented a “material connection” test out of

whole cloth and determined that the gargantuan new

mine is merely an extension of the exhausted mine.

By departing from the regulation’s plain text, the

Arizona Supreme Court failed to apply the method of

interpretation this Court requires. See Cty. of Maui v.

Haw. Wildlife Fund, 590 U.S. 590, 140 S. Ct. 1462

(2020); R. Sup. Ct. 10(c). As the only published

opinion explaining how to perform a new source

analysis, the state court opinion will have

catastrophic consequences not only on Queen Creek,

but also on waterways throughout the Nation. This

Court should grant certiorari and direct regulators

and courts across the Nation how to determine when

newly constructed sources of pollution may be

included within an existing discharge permit and

when, like here, they must be treated as new sources.

The questions presented are:

(1) Did the Arizona Supreme Court err by

determining that 40 C.F.R § 122.29(b)’s new source

analysis is satisfied by merely finding a “material

connection” between a newly constructed source of

polluted discharge and an existing source rather than

considering whether the new source operationally

depends on the existing source?

(2) Did the Arizona Supreme Court err by

determining that new source performance standards

for copper mines in 40 C.F.R. § 440.104 do not

“independently apply” to Resolution’s new mine?

PARTIES TO THE PROCEEDINGS

Petitioner, the San Carlos Apache Tribe, a

federally recognized Indian Tribe, was the appellant

before the Arizona Superior Court, appellant before

the Arizona Court of Appeals, and respondent before

the Arizona Supreme Court.

Respondents the State of Arizona and Arizona

Department of Environmental Quality were

respondents before the Arizona Superior Court,

Appellees before the Arizona Court of Appeals, and

Petitioners before the Arizona Supreme Court.

iii

Respondent Resolution Copper Mining, LLC was

an intervenor before the Arizona Superior Court,

Intervenor/Appellee before the Arizona Court of

Appeals, and Petitioner before the Arizona Supreme

Court.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

the San Carlos Apache Tribe represents that it does

not have any parent entities and does not issue stock.

RELATED PROCEEDINGS

The following proceedings are directly related to

this case within the meaning of Rule 14.1(b)(iii):

•

San Carlos Apache Tribe v. State of Arizona, et

al., Superior Court of Arizona, Maricopa

County, No. LC2019-00264-001. Judgment

entered March 25, 2021.

•

San Carlos Apache Tribe v. State of Arizona, et

al., Arizona Court of Appeals, No. 1 CA-CV 210295. Opinion filed November 15, 2022.

•

San Carlos Apache Tribe v. State of Arizona, et

al., Arizona Supreme Court, No. CV-22-0290PR. Opinion filed June 27, 2024.

TABLE OF CONTENTS

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDINGS.......................... ii

CORPORATE DISCLSOURE STATEMENT .......... iii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES........................................ v

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................... 4

STATEMENT OF THE CASE .................................... 4

A. Development and Exploitation of the Magma

and Resolution Mines ....................................... 4

B. ADEQ Erroneously Treats the Resolution

Mine as an Existing Source and the Tribe

Files Its Challenge ............................................ 7

REASONS FOR GRANTING CERTIORARI ........... 10

THE ARIZONA SUPREME COURT

DISREGARDED THE THREE-PRONG TEST IN

THE PLAIN TEXT OF SUBSECTION 122.29 AND

ADOPTED AN UNSUPPORTED “MATERIAL

CONNECTION” TEST ............................................. 12

A. First Prong: Do Performance Standards

Predate Construction? .................................... 14

B. Second Prong: Is the New Source

Operationally Independent? .......................... 15

C. Third Prong: Do Regulations Independently

Apply to the New Source? .............................. 25

CONCLUSION .......................................................... 28

APPENDIX

TABLE OF AUTHORITIES

Cases

County of Maui v. Hawaii Wildlife Fund, 590 U.S.

165, 140 S. Ct. 1462 (2020) ...................ii, 1, 14, 20

Green v. Brennan, 578 U.S. 547 (2016) .............. 13, 14

Illinois v. Gates, 462 U.S. 213 (1983) ......................... 4

Manasota-88, Inc. v. Thomas, 799 F.2d 687 (11th Cir.

1986) .................................................................... 11

National Wildlife Federation v. E.P.A., 286 F.3d 554,

568-70 (D.C. Cir. 2002) ....................................... 11

San Carlos Apache Tribe v. State of Arizona

(“SCAT II”), 550 P.3d 1096 (2024)

............................. iii, 3-7, 9-12, 14, 19-20, 23, 26-28

San Carlos Apache Tribe v. State of Arizona

(“SCAT I”) , 254 Ariz. 179, 520 P.3d 670

(App. 2022). ............................................... iii, 3, 8-9

S.D. Warren Company v. Maine Board of

Environmental. Protection, 547 U.S. 370 (2006).13

Statutes & Regulations

28 U.S.C. § 1257 .......................................................... 4

33 U.S.C. § 1251 ....................................................... i, 1

40 C.F.R. § 122.2 ................................................... 4, 14

40 C.F.R. § 122.4 ...................................................... i, 1

40 C.F.R. § 122.29 ....... i, ii, 2-4, 8, 10-18, 21-22, 25-28

40 C.F.R. § 440.102 ................................................... 27

40 C.F.R. § 440.103 ................................................... 27

40 C.F.R. § 440.104 ..................................... ii, 4, 25-28

40 C.F.R. § 440.132 .............................. 4, 16, 17, 26-28

A.R.S. § 49-201 ............................................................ 7

A.R.S. § 49-221 ............................................................ 7

A.R.S. § 49-255 ............................................................ 7

Rules of the Supreme Court of the United States

Rule 10 .............................................................. ii, 9, 12

Rule 14 ..................................................................... ii, 4

Rule 29 ........................................................................ X

Other Sources

Ore Mining and Dressing Point Source Category

Effluent Limitations Guidelines and New Source

Performance Standards, 47 Fed. Reg. 54598–600

(Dec. 3, 1982) ............................................. 11, 14-16

vii

New Source Criteria (40 C.F.R. 122.29(b), 49 Fed.

Reg. at 38,044 (Sept. 26, 1984) ................ 18, 21, 23

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts, 167 (2012)

................................................................... 16, 17, 20

PETITION FOR CERTIORARI

Queen Creek is a tributary of the Gila River that

flows east to west from the Superstition Mountains

through the central Phoenix Basin. Since time

immemorial, Queen Creek and its surrounding

streams, creeks, springs, and seeps have been

considered sacred to members of the San Carlos

Apache Tribe (“Tribe”) and their ancestors. To this

day, Queen Creek bears tremendous cultural and

religious importance in traditional Apache religious

practice, because spiritual beings (Ga’an) reside in its

waters.1 Queen Creek is also a source of Apache food

and medicine.

For over a century, nearby mines have discharged

copper into Queen Creek, causing it to fail water

quality standards under the Clean Water Act

(“CWA”), harming Apache Ga’an, and thus,

threatening traditional Apache religion and

spirituality. The express policy of the CWA is to

“restore and maintain the chemical, physical and

biological integrity” of the Nation’s navigable waters,

including Queen Creek. See 33 U.S.C. § 1251(a); see

Cnty. of Maui v. Hawaii Wildlife Fund, 590 U.S. 165,

140 S. Ct. 1462 (2020).

Consequently, federal

regulation imposes strict regulations on new sources

that would discharge pollution into impaired

waterways. See 40 C.F.R. § 122.4(i), Part 440.

In 2007, Resolution Copper, LLC (“Resolution”)

began constructing a new copper mine near Queen

Creek. While new copper mines are hardly

1See Testimony of Chairman Terry Rambler, San Carlos

Apache Tribe, Hearing before the Committee on Energy and

Natural Resources, United States Senate (Feb. 9, 2012),

https://www.congress.gov/event/112th-congress/senateevent/LC3611/text; Goodwin, Grenville, White Mountain Apache

Religion, American Anthropologist, 40:24-37, 1938, at 24, 27.

uncommon in Arizona, this massive copper mine will

be unlike any ever constructed in the United

States. Resolution anticipates that over the mine’s

forty-year lifespan it will produce 20 million tons of

copper—equivalent to 25 percent of the United States’

copper demand. It will also cause the land above the

mine to subside up to 1,000 feet and drain the entire

Apache Leap tuff aquifer that has stood above the ore

body for eons.2 Water that flows into this new mine

will become contaminated with copper, and

Resolution seeks authorization to discharge that

copper-contaminated water into Queen Creek.

The Clean Water Act does not outright prohibit

Resolution from obtaining a permit to do so, but it first

imposes strict requirements. The threshold issues—

and subjects of this petition—are (1) how to perform

the new source analysis required by 40 C.F.R.

§ 122.29(b); and (2) whether the Resolution Mine is a

new source.

By its plain text, subsection 122.29(b) establishes

a three-prong test: a source is a new source if (1) its

construction began after applicable new source

performance standards were promulgated; (2) it is

operationally independent from existing sources; and

(3) new source performance standards “independently

apply” to it.

ADEQ, Arizona’s regulatory agency charged by

Environmental Protection Agency with administering

discharge permits, misinterpreted and misapplied

this simple test, allowing Resolution to completely

2Wells, James, The Proposed Resolution Copper Mine and

Arizona’s Water Future, September 21, 2021, available at

https://static1.squarespace.com/static/556e05ade4b0b54303ce35

44/t/6470ef67e2f78b310b8f56b1/1685122922028/Dr.+Wells+Rep

ort+on+Water+Impacts+from+Resolution+Copper+Mine+%28928-21%29+%28003%29.pdf (last visited, September 21, 2024).

bypass the CWA’s protections. ADEQ, and later the

Arizona Supreme Court, determined that this

unprecedented new mine was a mere extension of the

nearby Magma Mine, which has been shuttered for

nearly 30 years.

Under subsection 122.29(b), the Resolution Mine

is not an “existing source” of copper-contaminated

discharge, but a “new source” because (1) its

construction began after new source performance

standards for copper mines were promulgated; (2) it is

operationally independent of the Magma Mine; and

(3) new source performance standards independently

apply to its discharge. See 40 C.F.R. § 122.29(b).

Queen Creek is worthy of protection, and the Tribe

seeks no more protection than what the CWA provides

to all waterways across the country. Yet, the Arizona

Supreme Court in SCAT II sets a bad precedent that

threatens to undo federal regulation and the intent of

Congress under the CWA. This Court should grant

certiorari to provide definitive, final guidance on

Subsection 122.29(b)’s “new source” analysis, which

governs the challenging balance between government

efforts to protect and develop two of our Nations’ most

vital natural resources: copper and clean water.

OPINIONS BELOW

The Arizona Supreme Court’s opinion is published

at 550 P.3d 1096 (“SCAT II”). The Arizona Court of

Appeals’ opinion is published at 254 Ariz. 179, 520

P.3d 670 (“SCAT I”).

JURISDICTION

The Arizona Supreme Court filed its opinion on

June 27, 2024. See R. Sup. Ct. 13.1. That opinion

turns on the interpretation of federal statutes and

regulations that the Tribe pressed below, particularly

40 C.F.R. §§ 122.2, 122.29, 440.104 and 440.132. This

Court has jurisdiction. See 28 U.S.C. § 1257; Illinois

v. Gates, 462 U.S. 213, 216-217 (1983).

Supreme

Court Rule 14.1(e)(v) does not apply.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent text of the federal statutes and

regulations cited in this petition, including 40 C.F.R.

§§ 122.2, 122.29, 440.104 and 440.132, are reproduced

at APP-156-66.

STATEMENT OF THE CASE

A. Development and Exploitation of the

Magma and Resolution Mines.

The Magma and Resolution mines and the ore

bodies they exploit are vastly separate and distinct;

the mines are built centuries apart, utilize different

mining methods, and the new mine will outproduce

the old mine fifteen times over.

The facts are not in material dispute. SCAT II,

550 P.3d 1096, ¶ 70. In 1911, the Magma Copper

Company (“Magma”) began constructing a mine on

the West Plant Site northwest of Superior that would

yield 1.3 million tons of copper by the time it was

exhausted in 1996. Id. at ¶ 4; APP-109-10. The

Magma Mine chased the vein of the high-grade

Magma Ore Body using the “adit” (tunnel) mining

method accessed through eight mine shafts that

Magma drilled around the West Plant Site. APP-10910. In 1971, Magma constructed “Shaft 9” on the East

Plant Site, a non-contiguous parcel two miles east of

Superior, to mine the Magma Ore Body from the east.

APP-110. At that time, Magma also constructed the

Never Sweat Tunnel to connect the East and West

Plant Sites. Id.

In 1996, all operations related to the Magma Mine

ceased when its ore body was depleted, and BHP

Copper, Inc. (“BHP”) succeeded Magma. Id. BHP

allowed the Magma Mine to flood and backfilled much

of its underground workings including Shafts 1

through 7. Id. This marked the end of the Magma

Mine.

In 1994, Magma discovered what would become

known as the Resolution Ore Body—a new, large,

virgin lode of low-grade copper ore sitting beneath

Tonto National Forest. See SCAT II, 550 P.3d 1096,

¶¶ 9-13. The Resolution Ore Body lies 4,500 to 7,000

feet below the surface, far deeper than the Magma

Ore Body and so deep that it can only be mined by

robots due to temperatures that exceed 150 degrees.

APP-109.

The Resolution Ore Body sits south and east of the

East Plant Site and is separate from, and unrelated

to, the Magma Ore Body. APP-108-09.

In 2004, BHP and Rio Tinto formed Resolution as

a joint venture and transferred to it all interests and

rights they held in the West Plant Site, East Plant

Site, and the Resolution Ore Body.3 SCAT II, 550

3Because the Resolution Ore Body sits beneath Tonto

National Forest, Resolution began lobbying Congress to transfer

that land to it in exchange for far less valuable land elsewhere

in Southeastern Arizona. Those efforts resulted in hearings

before Congress in which members of the Tribe testified about

the sacred character of Oak Flat and the devastating impact of

its destruction by Resolution’s mine. Resolution’s efforts to

obtain the land failed eight times between 2005 and 2013 until

the land exchange was appended at the last minute to a mustpass National Defense Authorization Act for fiscal year 2015

without being reviewed and considered by Congress at the time

of voting. See 2005 H.R. 2618, 2005 S.1122; 2006 H.R. 6373, 2006

P.3d 1096, ¶ 12. In 2007, Resolution began

constructing active mining areas that will support the

Resolution Mine, including Shaft 10, which extends

7,000 feet below ground, as well as cooling towers, a

wash bay, and water treatment plant. Id.; APP-11011.

Once completed, the Resolution Mine will consist

of a complex network of underground mineworks that

will extract ore using the panel caving method. APP109.

The Resolution complex will include the

Resolution Mine and numerous facilities on the East

and West Plant Sites, some of which were formerly

associated with the Magma Mine. Resolution projects

that over its 40-year production life, the new mine will

yield 20 million tons of copper and consume some

750,000 acre-feet of water, most of which will be

discharged as copper effluent in one form or another.

B. ADEQ Erroneously Treats the Resolution

Mine as an Existing Source, and the

Tribe’s Files Its Challenge

In 2017, Resolution applied to renew the discharge

permit4 that ADEQ previously issued for the

shuttered Magma Mine and included active mining

areas that will exclusively serve the new Resolution

Mine. This includes the newly drilled “Shaft 10” on

the East Plant Site and the beginnings of a complex

network of automated mineworks that Resolution is

S.2466; 2007 H.R. 3301, 2007 S.1862; 2008 S.3157; 2009

H.R.2509; 2010 H.R. 4880; 2011 H.R.1904; 2013 H.R. 687, 2013

S.339; and 2014 H.R.39979.

4The Environmental Protection Agency authorized ADEQ to

administer the National Pollution Discharge Elimination

Systems within Arizona on December 5, 2002. Arizona Statute

applies the federal standards to all tributaries and reaches of the

Gila River, among others.

See A.R.S. §§ 29-201-38, 49221(G)(1)(b), 49-255(2)(a).

constructing beneath the Resolution Ore Body.

ADEQ renewed the permit—without conducting a

“new source” analysis—treating the Resolution Mine

as an existing source and part of the old, defunct

Magma Mine. SCAT I, 520 P.3d 670, ¶ 15-16.

The Tribe challenged ADEQ’s decision before the

Water Quality Appeals Board (“Board”) arguing that

the Resolution Mine is a “new source” under 40 C.F.R.

§§ 122.2 and 122.29.

Id.; APP-98, 101-02.

November 2018, the Board remanded the matter to

ADEQ instructing it to conduct a “new source”

analysis. Id. ¶ 17.

In 2019, ADEQ completed a truncated new source

analysis, in which it determined that the Resolution

Mine was an existing source. Id. ADEQ erroneously

reasoned that because performance standards apply

to “the mine as a whole” (i.e., the combination of all

“active mining areas” on both sites), the analysis

begins and ends with the date that Magma began

constructing its original “mine”—1911. Id. The Tribe

appealed this decision to the Board, which affirmed.

Id. ¶ 18.

The Tribe appealed the Board’s 2019 decision to

the Arizona Superior Court arguing under 40 C.F.R.

§§ 122.2 and 122.29 that the Resolution Mine is a new

source and that the Board’s erroneous new source

analysis was inconsistent with federal regulations.

Id. ¶ 20; APP-83-83. However, the Superior Court

deferred to ADEQ and affirmed the Board’s decision.

SCAT I, 520 P.3d 670, ¶ 20.

The Tribe appealed to the Arizona Court of

Appeals, which reversed, determining that the

Resolution Mine was a new source under 40 C.F.R.

§§ 122.2 and 122.29. Id. ¶ 72. The Court of Appeals

rejected ADEQ’s erroneous “mine-as-a-whole”

interpretation, which had confused the regulatory

definitions of “mine,” “active mining area,” and “site.”5

Id.¶¶ 30-61; see 40 C.F.R. §§ 122.2, 440.132(a), (g).

The Court of Appeals correctly determined the

Resolution Mine is a “new source” because its

construction began after 1982, it is “substantially

independent” of the Magma Mine, and new source

performance standards independently apply to it.

SCAT I, 520 P.3d 670, ¶¶ 52-61.

Resolution and ADEQ sought review with the

Arizona Supreme Court, which accepted review,

reversed the Court of Appeals, and determined that

the Resolution Mine is not a “new source.” Although

the court agreed with the Tribe that §§ 122.2 and

122.29(b) require regulators to consider only newly

constructed items and not “the mine as a whole,” it

determined that the Resolution Mine was not

independent of the Magma Mine because the two

shared a “material connection.” SCAT II, 550 P.3d

1096, ¶ 63. Further, the court failed to analyze the

mineworks that Resolution is constructing under the

Resolution Ore Body, but instead focused its analysis

on a solitary mineshaft, “Shaft 10”—a term that the

Parties and lower courts used as shorthand for all the

new active mining areas associated with the

Resolution Mine. Id. ¶¶ 69-71. In other words, the

5In short, an “active mining area” is a place where

“extraction, removal, or recovery of metal ore” takes place. 40

C.F.R. § 440.132(a). A “mine” is a type of active mining area; it

is defined as “an active mining area . . . used in or resulting from

the work of extracting metal ore . . . from [its] natural deposits.”

40 C.F.R. 440.132(g). A “site” is the broadest term and means

“the land or water area where any ‘facility or activity’ is

physically located or conducted, including adjacent land used in

connection with the facility or activity.” Thus, any mining site

may include multiple active mining areas some of which may be

mines.

court failed to analyze the mine itself that will be the

source of copper-contaminated discharge.

REASONS TO GRANT CERTIORARI

This Court provides the definitive and final

interpretation of federal law to guide lower courts and

agencies fulfilling federal mandates. Presently, the

only published opinion interpreting how agencies

must perform a new source analysis is the Arizona

Supreme Court’s erroneous decision that departs from

the plain text of the very regulation establishing that

analysis. See 40 C.F.R. § 122.29(b). See R. Sup. Ct.

10(c) (certiorari warranted when “a state court . . . has

decided an important question of federal law that has

not been, but should be, settled by this Court, or has

decided an important federal question in a way that

conflicts with relevant decisions of this Court”).

Further, because new source analyses are

frequently the domain of state administrative

function, federal judicial review is not only rare, but

often subject to the factual determinations of agency

officials. As such, published opinions presenting pure

legal questions on undisputed facts are infrequent

and this Court should take the opportunity to weigh

in and provide a consistent framework for Subsection

122.29(b)’across the various jurisdictions in the

country.

Moreover, the undisputed facts of the case warrant

asking this Court to take a fresh look and definitively

interpret the governing regulations.

The new

Resolution Mine is a colossal undertaking that is

legally, factually, and facially independent of the

Magma Mine. Resolution projects that its new mine

will supply the equivalent of 25% of the Nation’s

copper demand,6 making it one of the most profitable

copper mines in the world and a project that

Resolution would pursue apart from any connection to

the Magma Mine. Further, the Resolution Mine will

mine an entirely separate, virgin ore body, use a

different extraction method, and will out-produce the

Magma Mine fifteen times over in half the time.

Presently, SCAT II is the only published authority

instructing regulators how to perform a “new source”

analysis under 40 C.F.R. § 122.29(b). Cf. National

Wildlife Federation v. E.P.A., 286 F.3d 554, 568-70

(D.C. Cir. 2002) (determining specific regulation

categorizing new fiber lines as a “new source” did not

create an irrebuttable presumption); Manasota-88,

Inc. v. Thomas, 799 F.2d 687 (11th Cir. 1986)

6This is a projection of volume, not a commitment to deliver

copper to producers or consumers in the United States.

Resolution Copper Mining Limited Liability Company is owned

by Rio Tinto (Australia/England) and BHP (Australia). Rio Tinto

owns 55% of Resolution Copper, and BHP owns 45%. Shining

Prospect Private Limited Company, based in Singapore, is a

holding company that owns over 14% of Rio Tinto, making it the

single

largest

shareholder

Rio

Tinto,

see

https://www.sharecafe.com.au/2024/04/05/rio-tintos-annualshare-buyback-battle/ (last visited Sept. 23, 2024). Shining

Prospect PLC is wholly owned by Chinalco, a holding company

of the State-owned Assets Supervision and Administration

Commission of the State Council (SASAC) of the People’s

Republic

China,

see

https://www.chinalco.com.cn/en/en_gywm/en_qyjj/ (last visited

Sept. 23, 2024).

Resolution has long been exploring expansion at the Port of

Guaymas to ship its copper to China. See Port of Guaymas Set

Expand,

Arizona

Daily

Star

(Apr.

2012),

https://tucson.com/business/local/port-of-guaymas-set-toexpand/article_1faea8eb-20bf-5fa3-b22c-95d98727a374.html

(last visited Sept. 23, 2024).

(summarily determining disposal area “cannot

logically be viewed apart” from its source).

Allowing SCAT II to stand would not only have

grave consequences for Queen Creek and the Tribe,

but it would also jeopardize all impaired waterways

across the country, as the Arizona Supreme Court’s

opinion is the only authority on the subject. Most

importantly, SCAT II’s test completely undermines

Congress’ intent for the CWA to restore Queen Creek

and other similarly situated waters faced with the

discharge from new mines and other new sources of

pollution.

This Court must provide definitive, final guidance

to regulators and courts by establishing how to

perform a new source analysis under 40 C.F.R.

§ 122.29(b). See R. Sup. Ct. 10(c). This Court should

not allow this erroneous state court decision to stand

because it involves an important question of federal

law and has been decided in a manner that conflicts

with relevant decisions of this Court. See id.

THE ARIZONA SUPREME COURT

DISREGARDED THE THREE-PRONG TEST IN

THE PLAIN TEXT OF SUBSECTION 122.29

AND ADOPTED AN UNSUPPORTED

“MATERIAL CONNECTION” TEST

Federal regulation establishes a three-prong test

to determine whether new construction constitutes a

new source.

See 40 C.F.R. § 122.29(b).

New

construction is a new source if:

(1) . . . it meets the definition of “new

source” in § 122.2,[7] and

740 C.F.R § 122.2 defines a new source, in relevant part, as:

“any building, structure, facility, or installation from which

(i)

It is constructed at a site at

which no other source is located; or

(ii)

It totally replaces the

process or production equipment that

causes the discharge of pollutants at

an existing source; or

(iii) Its processes are substantially

independent of an existing source at

the same site. . . .

(2) A

source

meeting

the

requirements of paragraphs (b)(1) (i), (ii),

or (iii) of this section is a new source only

if a new source performance standard is

independently applicable to it. If there is

no such independently applicable

standard, the source is a new discharger.

Put in simpler terms, new construction is a “new

source” when (1) its construction begins after EPA

promulgates new source performance standards, see

40 C.F.R. § 122.2; (2) it is operationally independent

of other sources, see 40 C.F.R. § 122.29(b)(1)(i)-(iii);

and (3) it is independent for regulation. See 40 C.F.R.

§ 122.29(b)(2).

Rather than interpret and apply the plain text of

these regulations in context, the Arizona Supreme

Court departed from it, cutting a new “material

connection” test out of whole cloth. This contradicts

this Court’s precedent regarding the interpretation of

federal regulations. See Green v. Brennan, 578 U.S.

547, 553 (2016) (“we begin our interpretation of the

regulation with its text”); also, S.D. Warren Co. v.

there is or may be a ‘discharge of pollutants,’ the construction of

which commenced . . . [a]fter promulgation of standards of

performance under section 306 of CWA which are applicable to

such source . . . .”

Maine Bd. of Envtl. Prot., 547 U.S. 370, 376 (2006)

(absent regulatory definition, courts must construe

terms “in accordance with [their] ordinary or natural

meaning”). Only when the text is unclear does this

Court turn to other canons of construction. Green, 578

U.S. at 553; Cty. of Maui, 150 S. Ct. at 1468

(determining plain text of “from” in statute did not

mean “fairly traceable” or proximately caused).

First Prong: Do Performance

Standards Predate Construction?

The first prong of the new source analysis requires

determination of whether the new construction meets

the definition of a “new source” in 40 C.F.R. § 122.2.

Section 122.2 defines a “new source” as “any building,

structure, facility or installation from which there is

or may be a ‘discharge of pollutants,’ the construction

of which commenced . . . [a]fter promulgation of

standards of performance . . . which are applicable to

such source.” Under § 122.2, the newly constructed

facilities alone are at issue and nothing else.

The Arizona Supreme Court correctly determined

that the first prong focuses solely on the new

construction and not the date that construction began

on an entire site. SCAT II, 550 P.3d 1096, ¶¶ 41-50.

Thus, the court properly rejected ADEQ’s

interpretation of this prong that focused on the date

that Magma originally began construction on the

West Plant Site in 1911.8 Under 40 C.F.R. § 122.2,

8Below, ADEQ and Resolution advanced an erroneous “mineas-a-whole” interpretation that would render § 122.2 and

§ 122.29(b) meaningless surplusage. They argued that because

construction of the Magma Mine began in 1911, no copper mine

on site could ever have a later date. If the inquiry began and

ended with whether operations existed on site (or a related site)

before 1982, there would be no need to evaluate the remaining

prongs. A new source analysis would only occur on vacant sites.

the Resolution Mine is a “new source” because its

construction began in 2007, a quarter century after

new source performance standards for copper mines

were promulgated. See Ore Mining and Dressing

Point Source Category Effluent Limitations

Guidelines and New Source Performance Standards,

47 Fed. Reg. 54598–600 (Dec. 3, 1982).

Second Prong: Is the New Source

Operationally Independent.

Section 122.29(b)(1) provides three paths to

establishing that new construction is operationally

independent. It states, in part:

[A] source is a ‘new source’ if . . . :

(i) it is constructed at a site at which

no other source is located; or

(ii) it totally replaces the process or

production equipment that causes the

discharge of pollutants at an existing

source; or

(iii) its processes are substantially

independent of an existing source at

the same site.

Here, the Resolution Mine either totally replaces

the Magma Mine or is substantially independent from

the Magma Mine. Either way, the Arizona Supreme

Court, applying its “material connection” test, failed

to analyze the Resolution Mine with an eye toward

whether it is operationally independent of the

depleted Magma Mine.

1. The Resolution Mine Totally Replaces

the Magma Mine.

The Resolution Mine is operationally independent

of the Magma Mine because it totally replaces it. A

new source is independent in fact when it “totally

replaces the process or production equipment that

causes the discharge of pollutants at an existing

source.” 40 C.F.R. § 122.29(b)(1)(ii). Within a mine,

the source of pollution is the mine drainage that is

“drained, pumped, or siphoned” from extraction areas.

See 40 C.F.R. § 440.132(g), (h). In a mine, the process

or production equipment associated with extraction is

the same equipment which causes a discharge, as

opposed to equipment associated with removal or

recovery of metal ore. See 40 C.F.R. § 440.132(a), (g).

Here, neither Resolution, Magma, nor any other

person or entity extracts metal ore from the Magma

Mine.

Accordingly, the Resolution Mine’s new

mineworks will totally replace the process and

production equipment formerly used in the Magma

Mine, which has not extracted metal ore since 1996.

2. The Resolution Mine is “Substantially

Independent” of the Magma Mine.

Even if the Resolution Mine does not totally

replace the Magma Mine, it is nevertheless

“substantially independent” of the Magma Mine. See

40 C.F.R. § 122.29(b)(1)(iii). Whether a new source is

“substantially independent” is determined under the

totality of the circumstances. Section 122.29(b)(1)(iii)

directs courts and regulators to “consider such factors

as [(1)] the extent to which the new facility is

integrated with the existing plant; and [(2)] the extent

to which the new facility is engaged in the same

general type of activity as the existing source.”

(Emphasis supplied). The phrase “such factors as”

compels that these two factors are not exclusive.

Therefore, regulators and courts must, on a caseby-case basis and under the totality of the

circumstances: consider all the relevant factors;

determine how to evaluate them; and decide how

much weight each one deserves.

In doing so,

regulators and courts must interpret the plain text of

these factors in context. See Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal

Texts, 167 (2012) (explaining that courts must

interpret a statute’s plain language in context).

Here, the necessary context for interpreting each

factor is to ascertain whether a dependent

relationship exists between the new and existing

sources, such that the new depends upon the existing.

Further, because the test considers all the

circumstances, regulators and courts, in simplest

terms, “just need to look at it.” The Arizona Supreme

Court erroneously interpreted the two express factors

and failed to consider any others.

On the undisputed facts, the Resolution Mine is

“substantially independent” from the Magma Mine

because (1) the Resolution Mine operationally

replaces the exhausted Magma Mine; (2) Resolution’s

repurposing of vestigial active mining areas does not

show integration between the two mines; (3) by using

a different mining method, the Resolution Mine will

engage in a different type of activity than the Magma

Mine; and (4) several more factors indicate that the

Resolution Mine does not depend at all on the Magma

Mine. Indeed, if one “just looks at” the Resolution

Mine, it is obvious that it is substantially independent

of the Magma Mine.

a. The Resolution Mine Replaces the

Exhausted Magma Mine.

Even if the Resolution Mine does not totally

replace the Magma Mine within the meaning of

Subsection 122.29(b)(1)(ii), the facts supporting that

ground are strong evidence that the Resolution Mine

is “substantially independent” of the Magma Mine.

Again, the Magma Mine has been exhausted and it no

longer creates mining discharge consequent to

extraction of any ore. As such, all activity occurring

in the Resolution Mine—and all discharge produced

thereby—occurs independent of what may occur or

formerly occurred in the Magma Mine.

The Resolution Mine is complete in and of itself

and it does not depend on or owe its existence or

operations to the Magma Mine. The convenient reuse of active mining areas that formerly supported the

Magma Mine is merely an accident of history and a

beneficial economic advantage that does not show a

dependent relationship. This factor heavily weighs in

favor of the conclusion that the Resolution Mine is

“substantially independent” of the Magma Mine.

b. The Resolution Mine Is Not Integrated into

the Magma Mine; Vestiges of the Magma

Mine Are Integrated into It.

The first express factor in Subsection

122.29(b)(1)(iii) is “the extent to which the new facility

is integrated with the existing plant.” EPA guidance

states that minor additions like “a new purification

step” are highly integrated, while sharing “utilities”

or a “treatment plant” constitutes nominal

integration. New Source Criteria (40 CF 122.29(b)),

49 Fed. Reg. at 38,044 (Sept. 26, 1984).

As a starting point, the Resolution Mine is not a

“minor addition” to the Magma Mine. Even if the

Magma Mine were still in its heyday, the Resolution

Mine with its thirty-fold increase in annual

production would utterly dwarf it.

Moreover, the examples provided in the Federal

depends on the existing source. If an existing mine

does not produce copper ore, the new step would have

nothing to purify. Such integration is strong evidence

of dependence. Shared support facilities, however,

such as utilities or a treatment plant, constitute

nominal integration. If two mines draw electricity

from a common power plant or send discharge to a

common treatment plant, the shared plants do not

place the mines in a dependent relationship with one

another.

Each mine will otherwise operate

independently of the other and curtailing or

expanding one will not impact the other.

The direction of any integration is also critical. If

a new source is integrated into a dominant existing

source, the new source is most likely dependent. By

contrast, if vestiges of an existing source are

subsumed into a new source such that the new

dominates, then the new source is independent.

Connections, borne out of mere convenience or

economic prudence, do not evidence meaningful

integration and do not show that a new source

depends on an existing source.

Here, the undisputed evidence overwhelmingly

demonstrates that the Resolution Mine is not

integrated with the Magma Mine and that any

integration is either nominal or shows that vestiges of

the Magma Mine have been integrated into the

Resolution Mine’s operations. This includes the

repurposing of the Never Sweat Tunnel and Shafts 8

and 9, which have not facilitated any extraction in the

Magma Mine since 1996 but will be repurposed to

support the Resolution Mine. The continued use of

these vestiges depends on operations within the

Resolution Mine. Any integration between them

shows that the Resolution Mine dominates useful

vestiges of the Magma Mine.

The Arizona Supreme Court failed to consider

whether any integration between the mines shows a

dependent or independent relationship. Instead, the

court simply asked whether the two mines shared a

“material connection,” which it found in the Never

Sweat Tunnel and Shafts 8 and 9. SCAT II, 550 P.3d

1096, ¶¶ 53-56. By doing so, the court set a much

lower bar. The “material connection” test the court

invented falls short the plain text of the regulation by

shifting the inquiry away from one focused on

operational independence to one of mere physical

connection.

The court’s test contradicts the

regulation’s text which requires determination of

whether the new mine is “substantially independent.”

The Arizona Supreme Court’s interpretive shift is

not permitted by the text of Subsection 122.29(b)(iii)

and contradicts the method of interpretation required

by this Court. In County of Maui, this Court reversed

the Ninth Circuit when it similarly departed from the

statutory text. See 140 S. Ct. at 1470. There, the

lower court interpreted “from” in the CWA’s

prohibition on adding any pollutant to navigable

waters “from any point source” not as a direct

discharge or its “functional equivalent,” but merely as

“fairly traceable.”9

Id.; see also Scalia &

Garner, Reading Law, 167 (2012) (explaining that

courts must interpret a statute’s plain language in

context). Here, “material connection” does not fairly

rise from regulatory text requiring analysis of

whether a new source is so integrated into an existing

source that it is operationally dependent on that

existing source.

Further, the Arizona Supreme Court’s new test is

so unbounded that no new source may ever be

9In County of Maui, a wastewater treatment facility pumped

partially treated sewage through four wells hundreds of feet

underground, which then traveled half a mile or more through

groundwater to the ocean. 140 S. Ct. 1469.

regarded substantially independent when located on

site with another source—unless, of course, it meets

the express examples of shared utilities or shared

treatment facilities. See 49 Fed. Reg. at 38,044. The

Resolution Mine is not in any way integrated with the

shuttered Magma Mine, and this factor compels the

conclusion that the Resolution Mine is “substantially

independent” of the Magma Mine. This Court should

grant certiorari lest other courts follow this flatly

erroneous test.

c. Adit Mining Is Not the Same General Type

of Activity as Panel Cave Mining.

The second nonexclusive factor is “the extent to

which the new facility is engaged in the same general

type of activity as the existing source.” 40 C.F.R.

§ 122.29(b)(1)(iii) (emphasis added).

By the

regulation’s plain text, the inquiry is not binary; i.e.

the question is not whether both mines extract copper.

Rather, regulators and courts are directed to consider

the “extent” to which new and old “engage[] in the

same general type of activity.” Id. (emphasis

supplied). The regulation begins with the premise

that new and existing sources may engage in the same

general type of activity (e.g. copper mining) but

directs regulators and courts to consider the degree of

similarity. This is a qualitative analysis aimed at

facts that are material to whether a dependent

relationship exists.

As with integration, EPA provides an explanation

and example: if a plant “producing a final product . . .

adds new equipment to produce the raw materials for

that product . . . the proposed structure would likely

constitute a new source.” 49 Fed. Reg. at 38,043-44.

Nevertheless, even if the new construction is engaged

in the same type of activity, but “essentially

replicates, without replacing, the existing source,” it

too would be a new source.10 Id. While this second

example seems to counter the second express factor

because the activities are identical, the thrust of the

test is consistent. Like integration, the question is

whether the operational characteristics of the new

and existing sources evince a dependent relationship

between them.

In other words, this factor is not a procrustean bed

that allows a willing regulator to stretch the analysis

to meet the requisite level of abstraction that will

yield the desired result (e.g. copper mines become

mines become exploitation of natural resources

becomes economic activity). Rather, the factor must

illuminate whether an otherwise new source is

operationally independent of an existing source.

Here, the Magma Mine and Resolution Mine both

mine copper but they are entirely dissimilar. The

Magma Mine was an adit mine. While active, it

chased a high-grade vein through tunnels in a manner

that prevented collapse of the overburden.

Consequently, it had a comparatively lower impact on

the surface and aquifers that lie above.

By contrast, the Resolution Mine will use panel

caving—a brute-force method that collapses an ore

body from below along with the entire earth above it.

As panels of ore collapse, a subsidence zone will form

on the surface a thousand feet deep, and the

depression will drain the entire Apache Leap tuff

aquifer lying above. That aquifer, fed by rainwater

and streams from time immemorial, will drain into

the Resolution Mine in volumes far exceeding

discharges from the Magma Mine. These mining

methods are sharply different.

10Note that total replacement is an independent ground for

establishing independence in fact. See 40 C.F.R. 122.29(b)(1)(ii).

Additionally, the Resolution mine will more than

replicate the production of the Magma Mine. See 49

Fed. R. 38,044. Indeed, the new mine is thirty times

larger in terms of its projected annual production.

The Resolution Mine is not a continuation of the

Magma Mine, but a new, entirely separate mine that

will produce additional discharge on top of any

dewatering that occurs in the Magma Mine.

The Arizona Supreme Court erroneously

characterized the Resolution Mine as a mere increase

in capacity that results from adding equipment in one

or two production steps. SCAT II, 550 P.3 1096, ¶ 59

(quoting 49 Fed. Reg. at 38,044). Further, the court

analyzed only Shaft 10 and ignored the entire

mineworks where extraction will occur. Id. ¶¶ 59-60.

In other words, the court failed to analyze the

Resolution Mine itself, and instead focused on a single

mineshaft. Id. Worse, the court viewed the factor at

a high level of abstraction—“the mining process”—

and missed the forest for the trees. Id. ¶ 61.

To the extent the Magma Mine is engaged in any

kind of activity (it is not), the difference in mining

method between the two mines demonstrates that

that they are not engaged in the same general type of

activity. This factor weighs heavily in favor of

substantial independence and warrants a new source

designation. This Court should grant certiorari to

articulate the correct test under this factor as well.

d. Several Other Factors Demonstrate that the

Resolution Mine is Substantially

Independent of the Magma Mine.

Several other factors support that the Resolution

Mine is substantially independent of the Magma

Mine. These include the extraordinary size and scale

of the Resolution Mine and tremendous investment

that Resolution has made in constructing it. Whereas

the Magma Mine produced 1.3 million tons of copper

in eighty years from a high-grade ore body, the

Resolution Mine will produce 20 million tons of copper

in forty years from a separate, low-grade body.11 This

thirty-fold increase in annual production only

represents the copper yield. Because the Resolution

Mine will target a low-grade ore, it will extract more

material per ton of copper produced.

Additionally, Resolution has invested over $2

billion in constructing the new mine since 2004.12

Final construction will still take an additional ten

years, and Resolution remains uncertain when the

final stages will begin.13

Further, Resolution must also acquire title to U.S.

Forest Service land through a land exchange.14 To

accomplish this, Resolution invested untold sums

lobbying Congress for ten years before it passed

legislation authorizing a land exchange that would

allow it to exploit the Resolution Ore Body.15 Indeed,

the land exchange shows the Resolution Mine is

completely disjoined from the Magma Mine insofar as

it lies beneath Tonto National Forest and such areas

as Oak Flat and Apache Leap. These areas are

11See

https://resolutioncopper.com/project-overview/ (last

visited Sept. 23, 2024).

12See

https://resolutioncopper.com/rio-tinto-approves-anadditional-302-million-investment-in-resolution-copper-project/)

(last visited Sept. 23, 2024).

13https://www.riotinto.com/en/news/releases/2021/

Resolution-Copper-project-enters-next-phase-of-publicconsultation (last visited Sept. 23, 2024).

14This land exchange is the subject of a separate, unrelated

petition for certiorari filed with this court in Apache Stronghold

v. U.S., No. 24-291.

15 See fn. 4, supra.

spiritually, culturally, and historically significant to

members of the Tribe.16

Resolution’s extraordinary investment and the

obstacles it seeks to overcome shows that the new

mine is so valuable that Resolution would pursue it

regardless of any supposed connection to the depleted

Magma Mine. Instead, the proper lens to view any

connection between the two is that in Arizona’s

Copper Triangle, exploration is the norm, and active

mining areas associated with old mines often present

beneficial opportunities for those looking to start new

mines. Simply put, the Resolution Mine is not a

continuation of the depleted Magma Mine.

The enormous size, cost, and complexity of the

Resolution Mine are additional compelling factors

demonstrating substantial independence. The

Arizona Supreme Court failed to consider any of them

despite that the regulatory text demands that

regulators and courts consider all relevant factors.

See 40 C.F.R. § 122.29(b)(1)(iii). Applying the text as

written, all the relevant factors that one can conjure,

including those expressly stated in Subsection

122.29(b)(1)(iii), show that the Resolution Mine is

operationally independent of the Magma Mine and

that it is a new source.

Third Prong: Do Regulations

Independently Apply to the New

Source?

Whether a “new source” is independent for

regulation turns on whether a new source

performance standard is “independently applicable”

to it. 40 C.F.R. § 122.29(b)(2). If not, “the source is a

new discharger.” Id. The analysis begins with the

new construction and simply considers whether that

16 See fn. 1, supra.

construction—standing alone—would be subject to a

“new source” performance standard. Here, 40 C.F.R.

§ 440.104(a) establishes new source performance

standards for mine drainage. Subsection 440.132(h)

defines “mine drainage” as “any water drained,

pumped, or siphoned from a mine.” Subsection

440.132(g) defines a mine as “an active mining area

. . . used in or resulting from the work of extracting

metal ore . . . from [its] natural deposits.”

The Resolution Mine consists of all the new

mineworks that Resolution is constructing below the

Resolution Ore Body to extract copper ore from

natural deposits. This new construction in and of

itself independently meets the regulatory definition of

a “mine.” Further, Resolution will discharge mine

drainage “drained, pumped, or siphoned” from those

mineworks into Queen Creek. Accordingly, new

source performance standards independently apply to

the Resolution Mine; it is a “new source” for all

purposes under § 122.29(b).

The Arizona Supreme Court made three legal

errors in evaluating whether new source performance

standards independently apply to the Resolution

Mine. First, the court transformed the test into one

that considers whether the performance standards at

issue also apply to other sources on site; i.e., whether

the standards only apply to the new source and no

other sources. See SCAT II, 550 P.3d 1096, ¶¶ 67-68.

This is not the question. Rather, looking only to the

new construction, the question is whether

performance standards apply to that new

construction.

Indeed, evaluating whether the same standards

apply to other sources on a site would duplicate the

analysis of the second prong (operational

independence) by focusing on whether (1) the new

source is the only source on site; (2) the new source

totally replaces an existing source; or (3) the new

source is engaged in the same type of activity as an

existing source.

Second, even if the regulation directed regulators

and courts to evaluate all sources on site, the Arizona

Supreme Court applied the test incorrectly. The

Magma Mine is not subject to new source performance

standards but standards for existing sources.

Compare 40 C.F.R. § 440.102-03 (establishing “best

practicable control technology” and “best available

technology economically achievable” for existing

sources) with 40 C.F.R. § 440-104 (new source

performance standards). Even applying the court’s

erroneous test, new source performance standards

only apply to the Resolution Mine.

Third, the Arizona Supreme Court constrained its

analysis to Shaft 10 as a simple mineshaft and

ignored all the new mineworks that Resolution is

constructing that will extract copper ore and that will

be the source of the mine drainage. SCAT II, 550 P.3d

1096, ¶¶ 69-71; see 40 C.F.R. § 440.132(g), (h) (“mine

drainage” means “any water drained, pumped, or

siphoned from a mine”; “mine” means “active mining

area . . . used in or resulting from work of removing

metal ore . . . from [its] natural deposits”). In other

words, the court entirely failed to analyze the

Resolution Mine itself, as the regulation requires.

This analysis conflicts with ADEQ’s stipulation that

Shaft 10 and the other items under construction—i.e.,

the Resolution Mine—are sources of mine drainage,

and therefore, must be a mine. APP-146-47.

In summary, the Resolution Mine meets all three

prongs of the “new source” analysis. See 40 C.F.R.

§ 122.29(b). First, Resolution began constructing its

new mine in 2007, long after EPA promulgated

performance standards for copper mines. Second, the

Resolution Mine is “independent in fact” either as a

total replacement of the Magma Mine or as

substantially independent of the Magma Mine. Third,

the Resolution Mine is “independent for regulation”

because it is a “mine” as defined in the regulations

and will discharge mine drainage. See 40 C.F.R.

§§ 440.104, 440.132(g), (h). This Court should grant

certiorari, announce the proper method of conducting

a new source analysis, and expressly determine that

the Resolution Mine is new source under the CWA.

CONCLUSION

Few things are as important to the American

Southwest as water and mining; and both often stand

in conflict. While the mining sector plays a critical role

in supplying essential minerals like copper, the CWA

balances those interests against the need to maintain

the quality of the Nation’s waters. Congress’ intent

under the CWA is that common law principles alone

cannot effectively control pollution and that

waterways like Queen Creek must be restored and

maintained; without review, the unchecked

precedence of SCAT II will undermine that intent.

This Court should grant certiorari and establish the

proper interpretation of the new source analysis

required by 40 C.F.R. § 122.29(b). Further, this Court

should determine that the Resolution Mine is a new

source.

Respectfully Submitted,

Alexander B. Ritchie

Bernardo M. Velasco

Counsel for Petitioners

September 25, 2024

APPENDIX

San Carlos Apache Tribe v. State of Arizona

APPENDIX

Opinion Sought to Be Reviewed

San Carlos Apache Tribe v. State of Arizona

(“SCAT II”), ___ Ariz. ___, 550 P.3d 1096

(2024) ........................................................ APP-1

Other Relevant Opinions and Decisions

San Carlos Apache Tribe v. State of Arizona

(SCAT I), 254 Ariz. 179, 520 P.3d 670 (App.

2022) ....................................................... APP-33

San Carlos Apache Tribe, et al. v. State of

Arizona, et al., Superior Court of Arizona,

Maricopa County, LC2019-00264-001 DT

(Mar. 25, 2021). ...................................... APP-79

San Carlos Apache Tribe, et al. v. State of Arizona,

et al. Office of Administrative Hearing, No. 17001-WQAB.

APP-97

Statutes and Regulations

28 U.S.C. § 1257 ........................................ APP-156

33 U.S.C. § 1251 ........................................ APP-156

40 C.F.R. § 122.2 ........................................ APP158

40 C.F.R. § 122.4 ........................................ APP160

40 C.F.R. § 122.29 ..................................... APP-161

40 C.F.R. § 440.102 ................................... APP-163

40 C.F.R. § 440.103 ................................... APP-164

40 C.F.R. § 440.104 ................................... APP-165

40 C.F.R. 440.132 ...................................... APP-166

APP-1

San Carlos Apache Tribe v. State of Arizona

(“SCAT II”), ___ Ariz. ___, 550 P.3d 1096 (July 27,

2024).

JUSTICE KING authored the Opinion of the Court,

in which CHIEF JUSTICE BRUTINEL, VICE CHIEF

JUSTICE TIMMER, and JUSTICES BOLICK,

LOPEZ, BEENE, and MONTGOMERY joined.

Opinion

JUSTICE KING, Opinion of the Court:

¶1 Copper mining began at the Magma Copper Mine

near Superior, Arizona, over a century ago. In 1975,

the United States Environmental Protection Agency

(the “EPA”) *1099 issued the mine its first permit

authorizing the discharge of water pursuant to the

Clean Water Act, 33 U.S.C. §§ 1251–1389 (the

“CWA”). See 33 U.S.C. § 1342(a) (tasking the EPA

with administering the National Pollutant Discharge

Elimination System (“NPDES”) permit program,

which includes issuing permits that authorize the

discharge of pollutants when certain conditions are

met). The EPA later renewed the mine's discharge

permit every five to eight years.

¶2 In 2002, the EPA delegated its administrative

authority over the CWA permit program to the

Arizona Department of Environmental Quality

(“ADEQ”). See Approval of Application by Arizona to

Administer the NPDES Program, 67 Fed. Reg. 79629,

79630 (Dec. 30, 2002); A.R.S. §§ 49-255 to -265.

Thereafter, ADEQ periodically renewed the mine's

permit, as required by the CWA.

¶3 In 2014, the mine's owner, Resolution Copper

Mining, LLC (“Resolution”), completed construction of

a new mine shaft (“Shaft 10”). Shaft 10 is a vertical

APP-2

excavation about thirty feet wide that descends nearly

7,000 feet underground. The issue before us is

whether Shaft 10 is a “new source” under the CWA. A

“new source” is subject to the generally more stringent

new source performance standards under § 306 of the

CWA, 33 U.S.C. § 1316. Based on the record before us,

we conclude that the sinking of Shaft 10 did not create

a “new source” under the CWA. Thus, ADEQ acted

within its discretion when it issued the discharge

permit renewal to Resolution in 2017.

I. BACKGROUND

A. History And Development Of The Mine

¶4

1910–1911,

Magma Copper Company

(“Magma”) purchased and began developing the mine

to extract copper ore. Part of Magma's development

included deepening an existing mine shaft (Shaft 1)

and constructing other underground workings,

including additional mine shafts (Shafts 2 through 8).

A “shaft is the surface opening to the mine which

provides a means of entry to or exit from the mine for

men and materials, and for the removal of ore or

waste from underground to the surface. It may be

vertical

inclined.” See EPA, Development

Document for Final Effluent Limitations Guidelines

and New Source Performance Standards for the Ore

Mining

and

Dressing

Point

Source

Category (“Development Document”) 29–30 (Nov.

1982), https://www.epa.gov/sites/default/files/201510/documents/ore-mining_dd_1982.pdf. The mine

shafts were used for a variety of purposes, including

the removal of water to keep the mine workings dry (a

process known as dewatering) and ventilating and

improving air quality below the surface of the mine.

Magma also installed equipment at the mine, such as

a local concentrator to process ore and a smelter. In

addition, the mining operation included underground

APP-3

tunnels that connected the shafts and facilitated ore

extraction.

¶5 The development of a mine may expand as new ore

deposits are located. In this case, as active extraction

depleted copper ore in the original area, Magma

turned its attention to other exploratory efforts. New

copper-ore deposits were discovered, and Magma's

operations consequently expanded in an eastward

direction.

¶6 In 1971, Magma constructed Shaft 9 on noncontiguous property located approximately two miles

east of the original workings of the mine. The purpose

of Shaft 9 was to identify copper-ore bodies within

that area and improve access to ore.

¶7 Magma also constructed an underground tunnel

extending about two miles in length that connected

the eastern portion of the mine (including Shaft 9)

with the western portion. This tunnel was known as

the “Never Sweat Tunnel.” Magma used the Never

Sweat Tunnel to transport copper ore from Shaft 9 to

the western portion of the mine, where extracted ore

was processed and stored.

¶8

mining

operations

continued

depleting copper ore,

Magma

began

drilling

underground exploratory holes in an effort to locate

new ore. Magma discovered some new copper ore near

Shaft 9 but ceased further exploratory drilling in

1982. With no operating pumps, Magma allowed the

underground workings to flood with infiltrating

groundwater.

*1100 ¶9 In 1989, Magma began the process of

dewatering the mine. Magma also resumed ore

production and underground exploratory drilling. The

results of the exploratory drilling suggested the

possibility of undiscovered copper. In 1994–1995,

APP-4

Magma discovered a new, large copper-ore body

beneath the eastern portion of the mine (the “Eastern

Deposit”).

Magma,

however,

did

not

extract copper ore from the Eastern Deposit at that

time.

¶10 In 1996, a new entity, Broken Hill Proprietary

Company Ltd. (“BHP”), acquired the mine, forming a

wholly owned subsidiary, BHP Copper, Inc. (“BHP

Copper”). BHP Copper continued mining operations

from Shaft 9, depleting the remaining reserves in that

area. BHP Copper ceased mining operations but

continued exploration efforts by drilling deep holes in

the area of the Eastern Deposit. In 1998,

BHP Copper ceased all operations and turned off its

dewatering pumps, allowing the mine's underground

workings to flood with water. In addition, some of the

underground workings at the mine were backfilled.

¶11 In 2001, BHP entered into an exploration

agreement with an entity that was a wholly owned

subsidiary of Rio Tinto (collectively “Rio Tinto”).

Thereafter, Rio Tinto commenced a deep exploratory

drilling program focused on outlining the Eastern

Deposit.

¶12 In 2004, Rio Tinto acquired a majority interest in

the mine. Rio Tinto then formed Resolution as a joint

venture with BHP's successor, BHP Billiton, to

continue efforts aimed at extracting copper ore from

the Eastern Deposit. Beginning in 2005, Resolution

resumed exploratory drilling and conducted a study to

assess viable methods of extracting copper ore from

the Eastern Deposit. Resolution also decided to

construct a new mine shaft and other support

structures that would enable it to access and study

the Eastern Deposit. Through years of exploration

efforts, it was determined that the Eastern Deposit

begins around 4,500 feet below ground surface level

APP-5

and proceeds down to about 7,000 feet. It covers an

area of about one square mile, and the ore body is

approximately 1,600 feet in thickness.

¶13 From 2007 to 2009, Resolution began developing

and sinking Shaft 10. Shaft 10 is located about 300

feet from Shaft 9 in the eastern portion of the mine.

Shaft 10 descends nearly 7,000 feet underground; in

contrast, Shaft 9 descends roughly 5,000 feet. Shaft

10 is not drilled directly into the Eastern Deposit. In

2014, Resolution completed construction of Shaft 10

and its surface components, including a hoist and

structural supports that enable the transport of

supplies to and from the base of Shaft 10.

¶14 During Shaft 10's construction, Shaft 9 was used

for support purposes (e.g., ventilation and dewatering

underground mine workings). Resolution plans to

continue to use Shaft 9 for support but not for ore

extraction.1

¶15 Around the time of Shaft 10's construction,

Resolution performed other work at the mine: (1)

rehabilitating and extending the Never Sweat

Tunnel; and (2) constructing a new cooling tower,

additional rock stockpiles, wash bays, and a mine

water treatment plant.2 Resolution used the Never

Sweat Tunnel to transport development rock from its

activities to the western portion of the mine for

storage and future processing. Shaft 9 and the eastern

portion of the mine remain connected with the

western portion of the mine via the Never Sweat

Tunnel.

¶16 Resolution uses Shaft 10 to explore and study the

Eastern Deposit, ventilate and dewater the

underground workings, and transport supplies. Shaft

10 also provides another point of entry and exit for

individuals working at the mine. Resolution has not

APP-6

used Shaft 10 or other new features for the

commercial extraction of copper ore from the Eastern

Deposit. Resolution uses preexisting infrastructure at

the mine to support Shaft 10's functions. Resolution's

operation requires it to control stormwater and other

water used in the mining process, as well as remove

groundwater from the underground *1101 workings

of the mine through dewatering. To accomplish this,

Resolution drains water from Shaft 9 to the base of

Shaft 10 and then pumps the water up to and through

the Never Sweat Tunnel to the western portion of the

mine. From there, it is combined with water that has

been collected from Shaft 8, which is used to dewater

the western portion of the mine. Then, Resolution

sends all combined water west to the water treatment

plant for treatment and storage.3

¶17 According to Resolution's General Plan of

Operations, after water is treated at the water

treatment plant, Resolution will attempt to reuse the

water internally for ore processing, dust suppression,

equipment washing, drinking water, cooling, or fire

protection. In the event of excess treated water,

Resolution has a contract with the New Magma

Irrigation and Drainage District, thirty miles

southwest of the mine, to pipe that water to the

irrigation district. If the irrigation district does not

have capacity, Resolution is authorized to pipe the

treated water into a tributary that flows into Queen

Creek. To date, however, Resolution has not

discharged any water into Queen Creek; instead, it

has sent all excess treated water to the irrigation

district. Although circumstances could change,

Resolution intends to continue sending its treated

water to the irrigation district, rather than

discharging it into Queen Creek.

APP-7

¶18 Many of the originally constructed shafts and

tunnels are no longer in operation or accessible. But

Shaft 6 is used to ventilate the Never Sweat Tunnel.

And, as noted, Shafts 8 and 9 and the Never Sweat

Tunnel remain in use, and Resolution plans to

continue their use. Resolution may use other

preexisting shafts in the future, but not other tunnels.

¶19 Resolution's plan is to access the Eastern Deposit

using a technique called panel caving. This method

involves cutting the rock underneath the ore deposit,

removing its ability to support the overlying rock

material and causing it to collapse into a collection

zone. As the ore is extracted from the bottom of the

mine, the deposit will continue to collapse in on itself,

thereby continuing to replenish the extractable ore.

Occurring entirely underground, a series of

conveyors, rail lines, tunnels, hoists, and other

equipment will then transport the ore from beneath

the deposit up and to the western portion of the mine

for storage and processing. This method differs from

that previously implemented at the mine through the

use of adits and tunnels. See Development

Document, supra, at 29–30 (describing an “adit” as a

“passageway or opening driven horizontally into the

side of a hill generally for the purpose of exploring or

otherwise opening a mineral deposit,” and it “is open

to the atmosphere at one end”); see also Development

Document, supra, at 557.

B. The Distinction Between A “New Source” And

“Existing Source”

¶20 We must determine whether Resolution's sinking

of Shaft 10 created a “new source” under the CWA.

The CWA treats “new sources” differently from

“existing

sources.” See 40

C.F.R.

122.29(a)(3) (“Existing source means any source

which is not a new source or a new discharger.”). A

APP-8

“new source” is subject to the CWA's new source

performance

standards. See 33

U.S.C.

1316(a)(1) (defining “standard of performance” as “a

standard for the control of the discharge of pollutants

which reflects the greatest degree of effluent

reduction which [the EPA] determines to be

achievable through application of the best available

demonstrated

control

technology,

processes,

operating methods, or other alternatives, including,

where practicable, a standard permitting no

discharge of pollutants”); see also Ore Mining and

Dressing Point Source Category Effluent Limitations

Guidelines and New Source Performance Standards,

47 Fed. Reg. 54598–600 (Dec. 3, 1982) (referring to

the standards as “new source performance

standards”).

*1102 ¶21 “The classification of a facility as a new or

existing source is important because under the CWA

existing sources are subject to best available

technology (BAT) and best conventional technology

(BCT) requirements, while new sources are subject to

the generally more stringent new source performance

standards ... under section 306 of the CWA.”

NPDES Permit Regulations, 49 Fed. Reg. 37998,

38043 (Sept. 26, 1984). The distinction between a

“new source” and an “existing source” “is based on the

concept that new facilities have the opportunity to

install the best and most efficient production

processes

and

wastewater

treatment

technologies.” Id.

C. Water Discharge Permits

¶22 Since the CWA began requiring discharge

permits, all past and present owners of the mine have

obtained the necessary permit and permit renewals to

discharge water from the mine. The permit renewal

at issue here is the “Authorization to Discharge under

APP-9

the Arizona Pollutant Discharge Elimination

System,” which ADEQ issued to Resolution on

January 19, 2017 (Permit No. AZ0020389) (the “2017

Permit Renewal”). The 2017 Permit Renewal became

effective on January 23, 2017 and expired on January

22, 2022.

¶23 The 2017 Permit Renewal subjected Resolution to

certain requirements for purposes of complying with

the CWA's water quality standards. If Resolution

complied with such requirements, the 2017 Permit

Renewal authorized Resolution

to discharge mine site stormwater

runoff from Outfall 001 and treated mine

water, industrial water and seepage

pumping from Outfall 002 from the

Superior Operations in Pinal County,

Arizona to an unnamed wash, tributary

to Queen Creek in the Middle Gila River

Basin ... in accordance with discharge

limitations, monitoring requirements

and other conditions set forth herein,

and in the attached “Standard [Arizona

Pollutant

Discharge

Elimination

System] Permit Conditions.”

¶24 As noted, the 2017 Permit Renewal authorized

the discharge of waters “to an unnamed wash,

tributary to Queen Creek in the Middle Gila River

Basin.” Queen Creek has been designated an

“impaired

waterway”

due

the

levels

of copper present

it. See 33

U.S.C.

1313(d)(1)(C) (requiring states to identify waters that

do not meet water quality standards and establish for

those waters a “total maximum daily load ... at a level

necessary to implement the applicable water quality

standards”); see also 40 C.F.R. § 131.31(b); Ariz.

Admin. Code tit. 18, ch. 11, art. 1, app. B. ADEQ's

APP-10

2017 Permit Renewal subjected Resolution to effluent

limitations for copper that are more stringent than

federal

new

source

performance

standards

for copper. See 40 C.F.R. § 440.104.

D. Procedural History

¶25 The San Carlos Apache Tribe (the “Tribe”)

challenged ADEQ's issuance of the 2017 Permit

Renewal with the Arizona Water Quality Appeals

Board (the “Board”). The Tribe claimed that the

construction of Shaft 10 and other new features

created a “new source,” 40 C.F.R. §§ 122.2, 122.29(b),

rather than an “existing source,” 40 C.F.R. §

122.29(a)(3), under the CWA. The Tribe maintained

that, as a “new source,” Shaft 10 needed to satisfy

additional provisions of the CWA before ADEQ could

properly issue a permit renewal.

¶26 An administrative law judge (“ALJ”) from the

office of administrative hearings conducted a sevenday hearing and issued findings of fact and

conclusions of law. The ALJ determined that ADEQ

generally did not act arbitrarily and capriciously

when it issued the 2017 Permit Renewal, but ADEQ

should have first analyzed whether Shaft 10 and the

other new features were a “new source” under §

122.29(b). The ALJ, therefore, concluded that “the

matter should be remanded to ADEQ to allow it to

conduct an analysis as required by 40 C.F.R. §

122.29(b).”

¶27 In response to the ALJ's decision, the Board

entered an order remanding the matter to ADEQ to

conduct a “new source” analysis. ADEQ did so and

concluded that Shaft 10 and the new features were

“existing sources” (not “new sources”) under the CWA.

The Board issued a final administrative decision,

which adopted all the ALJ's *1103 findings of fact and

APP-11

affirmed ADEQ's issuance of the 2017 Permit

Renewal.

¶28 The Tribe appealed the Board's decision to the

superior court under A.R.S. § 12-905. The superior

court affirmed the Board's decision, concluding that

Shaft 10 and the new features did not constitute a

“new source” under the CWA.

¶29 The court of appeals reversed the superior court

in a split opinion. San Carlos Apache Tribe v. State,

254 Ariz. 179, 193 ¶ 61, 195 ¶ 72, 520 P.3d 670, 684,

686 (App. 2022). The majority concluded that “[t]he

CWA treats the new mine shaft as a ‘new source’

because it is substantially independent of the noncontiguous original deposit at the mining site.” Id. at

183 ¶ 1, 520 P.3d at 674. Thus, Shaft 10 “is a new

source and Resolution's mining site is subject to [new

source performance standards] under 40 C.F.R. §

440.104(a).” Id. at 193 ¶ 61, 520 P.3d at 684. The

majority also determined that because Shaft 10 is a

“new source” and Queen Creek is an “impaired

waterway,” ADEQ may not renew Resolution's

discharge permit until (1) ADEQ finalizes a total

maximum daily load plan for Resolution's discharge

of water into Queen Creek, and (2) Resolution

demonstrates other requirements prescribed in 40

C.F.R. § 122.4(i). Id. at 183 ¶¶ 2, 4, 193 ¶¶ 62–63, 520

P.3d at 674, 684.

¶30 The dissent disagreed with the order in which the

majority approached the CWA regulations for the

“new source” determination, explaining that the

regulations should be evaluated “in the order they are

presented in the text of the regulation.” Id. at 197–98

¶¶ 74–76, 520 P.3d at 688–89 (Paton, J., dissenting).

Conducting the analysis in that order, the dissent

concluded that “Shaft 10 is not a new source that

would require ADEQ to issue [a total maximum daily

APP-12

load plan] before permitting discharge from Shaft

10.” Id. at 202 ¶ 99, 520 P.3d at 693.

¶31 We granted review because this case presents an

issue of statewide importance. Although the 2017

Permit Renewal has expired, the issue presented is

one that is likely to arise again and evade review. We

have jurisdiction pursuant to article 6, section 5(3) of

the Arizona Constitution.

II. DISCUSSION

¶32 “We interpret statutes and administrative rules

de novo, ‘apply[ing] the same rules in construing both

statutes and rules.’ ” Saguaro Healing LLC v. State,

249 Ariz. 362, 364 ¶ 10, 470 P.3d 636, 638

(2020) (alteration in original) (quoting Gutierrez v.

Indus. Comm'n, 226 Ariz. 395, 396 ¶ 5, 249 P.3d 1095,

1096 (2011)). “We do not defer to the agency's

interpretation of a rule or statute.” Id. We “affirm the

agency action unless the court concludes that the

agency's action is contrary to law, is not supported by

substantial evidence, is arbitrary and capricious or is

an abuse of discretion.” A.R.S. § 12-910(F).

A. What Is The Test For Determining Whether A

Construction Is A “New Source” Under The

CWA?

¶33 In 1972, Congress passed the CWA with the

“objective ... to restore and maintain the chemical,

physical, and biological integrity of the Nation's

waters.” 33 U.S.C. § 1251(a). The CWA prohibits the

“addition of any pollutant to navigable waters from

any point source” without a permit. 33 U.S.C. §

1362(12)(A); see also 33 U.S.C. § 1311(a); 40 C.F.R. §

122.1(b)(1). The CWA also requires the EPA to

establish “standards of performance” for “new

sources” from which there are or may be discharges of

APP-13

pollutants for

1316(b)(1)(B).

certain

industries. 33

U.S.C.

¶34 The Tribe claims that Shaft 10 is a “new source”

under the CWA. According to the Tribe, this

designation matters because Queen Creek is an

“impaired waterway” and the CWA regulations

provide:

No permit may be issued ... [t]o a new

source ... if the discharge from its

construction or operation will cause or

contribute to the violation of water

quality standards. The owner or operator

of a new source ... proposing to discharge

into a water segment which does not

meet applicable water quality standards

or is not expected to meet those

standards even after the application of

the effluent limitations required by ...

[the] CWA, and for which the State or

interstate agency has performed a

pollutants load allocation for *1104 the

pollutant to be discharged, must

demonstrate ... that: (1) There are

sufficient remaining pollutant load

allocations to allow for the discharge;

and (2) The existing dischargers into

that segment are subject to compliance

schedules designed to bring the segment

into compliance with applicable water

quality standards.

40 C.F.R. § 122.4(i). The Tribe maintains that the

2017 Permit Renewal was improper because ADEQ

issued it before a copper total maximum daily load for

Queen Creek was finalized and before Resolution met

its burden under § 122.4(i)(1) and (2). Conversely,

Resolution and ADEQ contend that Shaft 10 is not a

APP-14

“new source” that would trigger these requirements,

and therefore ADEQ properly issued the 2017 Permit

Renewal.

¶35 At the outset, we must determine the proper

framework for determining whether a construction is

a “new source” under the CWA.4 Section

122.29(b) provides the “[c]riteria for new source

determination.” We agree with the court of appeals’

dissent that we should “approach the CWA

regulations in the order they are presented in the text

of the regulation.” San Carlos Apache Tribe, 254 Ariz.

at 197 ¶ 74, 520 P.3d at 688; see also Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 167 (2012) (discussing the “whole-text

canon” that “calls on the judicial interpreter to

consider the entire text, in view of its structure and of

the physical and logical relation of its many parts”).

¶36 Section 122.29(b)(1) begins: “Except as otherwise

provided in an applicable new source performance

standard, a source is a ‘new source’ if it meets the

definition of ‘new source’ in § 122.2.” See also 40

C.F.R. § 122.29(a)(1) (providing that “[n]ew source” is

“defined

in §

122.2”).

Therefore,

the

test first examines the definition of “new source” in §

122.2, which states:

New source means any building,

structure, facility, or installation from

which there is or may be a “discharge of

pollutants,” the construction of which

commenced: (a) After promulgation of

standards of performance under section

306 of CWA which are applicable to such

source, or (b) After proposal of standards

of performance in accordance with

section 306 of CWA which are applicable

to such source, but only if the standards

APP-15

are promulgated in accordance with

section 306 within 120 days of their

proposal.

See also 33 U.S.C. § 1316(a)(3) (defining “source” as

“any building, structure, facility, or installation from

which there is or may be the discharge of

pollutants”); 40 C.F.R. § 122.29(a)(2) (same); 33

U.S.C. § 1316(a)(2) (“The term ‘new source’ means any

source, the construction of which is commenced after

the publication of proposed regulations prescribing a

standard of performance under this section which will

be applicable to such source, if such standard is

thereafter promulgated in accordance with this

section.”).

¶37 If

that

provision

satisfied, §

122.29(b)(1) instructs that we next evaluate the three

criteria in § 122.29(b)(1)(i)–(iii):

[A] source is a “new source” if it meets

the definition of “new source” in §

122.2, and (i) It is constructed at a site at

which no other source is located; or (ii) It

totally replaces the process or production

equipment that causes the discharge of

pollutants at an existing source; or (iii)

Its

processes

are

substantially

independent of an existing source at the

same site.

40 C.F.R. § 122.29(b)(1) (emphasis added); see

also Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 568

(D.C. Cir. 2002) (explaining that the new source

performance standards apply “only to sources that

meet the ‘new source’ definition in 40 C.F.R. §

122.2, as well as one of the following three criteria”

in § 122.29(b)(1)(i)–(iii)).

APP-16

¶38 If those provisions are satisfied, the “new source”

test concludes with an evaluation *1105 of §

122.29(b)(2): “A source meeting the requirements of

paragraphs (b)(1)(i), (ii), or (iii) of this section is a new

source only if a new source performance standard is

independently applicable to it. If there is no such

independently applicable standard, the source is a

new discharger. See § 122.2.”5

¶39 The “new source” test, therefore, begins with the

broadest criteria—identifying both the general

physical characteristics of the construction (whether

it is a “building, structure, facility, or installation”)

and when its construction commenced. See 40 C.F.R.

§§ 122.2, 122.29(b)(1). The test then evaluates

additional criteria that are narrower in scope (e.g., the

source's relationship with other features where the

source is located). See 40 C.F.R. § 122.29(b)(1)(i)–

(iii), (b)(2). See also Nat'l Wildlife Fed'n, 286 F.3d at

568 (“If new construction does not satisfy 40 C.F.R. §

122.2 and one of the three criteria set forth in 40

C.F.R. § 122.29(b)(1), then the construction is

generally classified as a ‘modification’ and is not

subject to the [new source performance standards].”).

¶40 Accordingly, the following three-step test should

be used to determine whether a construction is a “new

source” under the CWA:

1. Step One: Does the construction

meet the definition of “new source”

under 40 C.F.R. § 122.2? 40 C.F.R. §

122.29(b)(1); see

also 33

U.S.C.

1316(a)(2), (3).

a. Has there been a construction of a

building,

structure,

facility,

installation from which there is or may

be the discharge of pollutants? 40 C.F.R.

APP-17

122.2; see

also 33

U.S.C.

1316(a)(3); 40 C.F.R. § 122.29(a)(2).

b. Has construction commenced? 40

C.F.R. § 122.2; see also 33 U.S.C. §

1316(a)(2).

c. Did construction commence after

the promulgation (or proposal) of

standards of performance under section

306 of the CWA that are applicable to

such source? 40 C.F.R. § 122.2; see

also 33 U.S.C. § 1316(a)(2).

If the answer to any subpart is no, the

construction is not a new source.

2. Step Two: If the answer to all

subparts of step one is yes, does the

construction meet any of the following

definitions of a “new source” in 40 C.F.R.

§ 122.29(b)(1)?

a. Is the construction at a site at

which no other source is located? 40

C.F.R. § 122.29(b)(1)(i).

b. Does the construction totally

replace the process or production

equipment that causes the discharge of

pollutants at an existing source? 40

C.F.R. § 122.29(b)(1)(ii).

c. Are its processes substantially

independent of an existing source at the

same site? 40 C.F.R. § 122.29(b)(1)(iii).

If the answer to all subparts is no, the

construction is not a new source.

3. Step Three: If the answer to all

subparts of step one and any subpart of

step two is yes, is there a new source

APP-18

performance

standard

that

“independently applicable” to

source? 40 C.F.R. § 122.29(b)(2).

the

a. If yes, the source is a new

source. Id.

b. If no, the source is not a new

source. Id.

This three-step test is consistent with the text and

sequence of the “criteria for new source

determination” expressly set forth in § 122.29(b). See,

e.g., Nat'l Wildlife Fed'n, 286 F.3d at 568.

B. Is Shaft 10 A “New Source” Under The ThreeStep Test?

¶41 We must now apply the three-step test to

determine whether Shaft 10 is a “new source” under

the CWA.

*1106 1. Step One

a. Is Shaft 10 a building, structure, facility, or

installation from which there is or may be a

discharge of pollutants?

¶42 The Board found that Shaft 10 and other mine

features are “facilities” under § 122.2. In this Court,

the parties do not dispute that Shaft 10 is a “building,

structure, facility, or installation from which there is

or may be a ‘discharge of pollutants.’ ” See 40 C.F.R. §

122.2; see also 33 U.S.C. § 1316(a)(3); 40 C.F.R. §

122.29(a)(2). Copper effluent is a pollutant under the

CWA. 40 C.F.R. § 401.15(22).

b. Has construction of Shaft 10 commenced?

¶43 It is undisputed that construction of Shaft 10 has

commenced. See 40 C.F.R. § 122.2; see also 33 U.S.C.

§ 1316(a)(2).

APP-19

c. What was

construction?

the

timing

Shaft

10's

¶44 The final issue at step one is whether the

construction of Shaft 10 commenced after the

promulgation (or proposal) of standards of

performance under “section 306 of CWA which are

applicable to such source.” See 40 C.F.R. § 122.2; see

also 33 U.S.C. § 1316(a)(2).

¶45 We begin by determining the meaning of

“applicable to such source”—does “such source” refer

to the mine or to the new construction at issue? We do

not interpret this specific text in isolation, but instead

read it within the context of the CWA “new source”

criteria. See Columbus Life Ins. v. Wilmington Tr.,

N.A., 255 Ariz. 382, 385 ¶ 11, 532 P.3d 757, 760

(2023) (stating that we “determine the plain meaning

of the words the legislature chose to use, viewed in

their broader statutory context”); Silver v. Pueblo Del

Sol Water Co., 244 Ariz. 553, 558 ¶ 16, 423 P.3d 348,

353 (2018) (“We interpret agency regulations

according to principles of statutory construction.”); see

also Scalia & Garner, supra, at 167 (explaining that

courts must interpret a statute's plain language in

context because “[c]ontext is a primary determinant of

meaning”).

¶46 There are noteworthy differences in the text of

the “new source” criteria that assist in our

interpretation. Step one considers whether new

source performance standards “are applicable to such

source.” See 40 C.F.R. § 122.2 (emphasis added); see

also 33 U.S.C. § 1316(a)(2). Step three provides that

“[a] source ... is a new source only if a new source

performance standard is independently applicable to

it.” 40 C.F.R. § 122.29(b)(2) (emphasis added). We

cannot ignore the text of “independently applicable”

at step three when determining the meaning of

APP-20

“applicable” at step one. See Columbus Life Ins., 255

Ariz. at 385 ¶ 11, 532 P.3d at 760 (noting “we view ‘the

statute as a whole’ to ‘give meaningful operation to all

of its provisions’ ” (quoting Wyatt v. Wehmueller, 167

Ariz. 281, 284, 806 P.2d 870, 873 (1991))); Silver, 244

Ariz. at 558 ¶ 16, 423 P.3d at 353.

45¶47 This textual distinction reveals that

“applicable to such source” at step one addresses

whether a new source performance standard is

applicable to the mine. And “independently applicable

to” the source at step three addresses whether a new

source performance standard applies independently

to the shaft. This interpretation gives meaning to each

term and ensures that the criteria in step one and step

three are not redundant. See State v. Eddington, 228

Ariz. 361, 363 ¶ 9, 266 P.3d 1057, 1059 (2011) (“[I]f

the terms mean the same thing, then one subsection

is redundant, and we generally construe statutes so

that no part is rendered redundant or

meaningless.”); see also Scalia & Garner, supra, at

174 (stating that no provision “should needlessly be

given an interpretation that causes it to duplicate

another provision or have no consequence”).

¶48 Moreover, this interpretation that step one

addresses general applicability to the mine is

consistent with the fact that the “new source” test

begins with the broadest criteria at step one. See Part

II(A) ¶ 39. The subsequent steps evaluate criteria that

are narrower in scope. Id.

¶49 Next, we must identify (1) when the construction

of Shaft 10 commenced, and (2) when the new source

performance standards were promulgated that would

be applicable to Shaft 10 as part of the

regulated copper *1107 mine. See 40

C.F.R.

122.2; 33 U.S.C. § 1316(a)(2). And finally, we must

determine whether the construction of Shaft 10

APP-21

commenced after the promulgation of the new source

performance standards that would be applicable to

Shaft 10 as part of the regulated copper mine. Id.

6¶50 Resolution began developing and sinking Shaft

10 between 2007 and 2009. The EPA promulgated the

new source performance standards for the Ore Mining

and Dressing Point Source Category on December 3,

1982. See Ore Mining and Dressing Point Source

Category Effluent Limitations Guidelines and New

Source Performance Standards, 47 Fed. Reg. at

54598–621; see also 40 C.F.R. § 440.100(a)(1) (stating

that provisions in Subpart J of Part 440 for Ore

Mining and Dressing Point Source Category are

applicable to “discharges from ... [m]ines that

produce copper” by “open-pit or underground

operations”); 40 C.F.R. §§ 440.100 to .105 (providing

effluent limitation guidelines for certain mines and

mills).6 The construction of Shaft 10 commenced after

the promulgation of new source performance

standards that are applicable to Shaft 10 as part of

the regulated copper mine. Therefore, step one of the

“new source” test is met.

2. Step Two

¶51 In order to meet step two, one of the three criteria

in § 122.29(b)(1)(i)–(iii) must apply to Shaft 10. Here,

we only consider the applicability of one subsection: §

122.29(b)(1)(iii) (evaluating whether “[i]ts processes

are substantially independent of an existing source at

the same site”). We accepted review on §

122.29(b)(1)(iii), which was presented in ADEQ's

petition for review. Further, the Tribe's briefing in

this Court focused on whether Shaft 10 met the

criteria in § 122.29(b)(1)(iii). The Tribe did not

develop an argument under § 122.29(b)(1)(i) or (ii).

Accordingly, we decline to consider whether §

122.29(b)(1)(i) or (ii) are satisfied. See State v.

APP-22

Johnson, 247 Ariz. 166, 180 ¶ 13, 447 P.3d 783, 797

(2019) (declining to consider an argument that a party

failed to develop).7

¶52 Section 122.29(b)(1)(iii) requires us to determine

whether Shaft 10's “processes are substantially

independent of an existing source at the same site.”

As § 122.29(b)(1)(iii) instructs, “[i]n determining

whether

these

processes

are

substantially

independent, the Director shall consider such factors

as the extent to which the new facility is integrated

with the existing plant; and the extent to which the

new facility is engaged in the same general type of

activity as the existing source.”

a. To what extent is the new facility integrated

with the existing plant?

¶53 The record demonstrates that Shaft 10 is

integrated with existing sources and operations of the

mine. Shaft 10 works with existing infrastructure,

including Shaft 9 and the Never Sweat Tunnel, to

ventilate and dewater the underground workings of

the mine.

¶54 The “management of mine drainage is an

integral part of most mining systems.” Ore Mining

and Dressing Point Source Category; Effluent

Limitations Guidelines and New Source Performance

Standards, 47 Fed. Reg. 25682, 25684 (June 14, 1982).

Without proper mine drainage management, water

will flood the mine's underground workings and

disrupt operations. See id. at 25685 (“Water is a

natural feature that interferes with mining

activities.”). To that end, Resolution drains water

from Shaft 9 to the base of Shaft 10, pumps the water

up to and through the Never Sweat Tunnel, combines

that water with water collected from Shaft 8, and

sends the water west to the water treatment plant for

APP-23

treatment and storage. Resolution has integrated

these functions of Shafts 8, 9, *1108 and 10 and the

Never Sweat Tunnel. Shaft 10 depends on existing

infrastructure to serve the essential functions of

ventilation and dewatering, which it does not do

independently.

¶55 The Tribe claims that “Shaft 10 is not integrated

into prior operations; those facilities are integrated

into Shaft 10.” But § 122.29(b)(1)(iii) does not draw

this fine distinction. Instead, it expressly provides

that we consider “the extent to which the new facility

is integrated with the existing plant.” 40 C.F.R. §

122.29(b)(1)(iii). And the record here demonstrates

that Shaft 10 is materially integrated with existing

infrastructure for purposes of performing the

essential functions of ventilating and dewatering

underground workings, which are necessary for the

continued pursuit of copper ore. There is no evidence

that Shaft 10 alone can ventilate and dewater the

underground workings in the manner necessary for

exploration and extraction of copper ore at the mine.

Shaft 10 is integrated with existing features of the

mine for its proper functioning. And the mere fact

that Resolution extended the Never Sweat Tunnel

does not change this determination. Shaft 10 is also

substantially integrated with Shaft 9, which provides

further support for the integrated workings. Thus,

existing features and Shaft 10 facilitate the continued

and integrated workings necessary for the pursuit

of copper ore.

¶56 The Tribe points to a provision in the Federal

to a process (like “a new purification step”) does not

make a facility a “new source”; but “if the only

connection between the new and old facility is that

they are supplied utilities such as steam, electricity,

APP-24

or cooling water from the same source or that their

wastewater effluents are treated in the same

treatment plant, then the new facility will be a new

source.” See NPDES Permit Regulations, 49 Fed. Reg.

at 38043. This provision does not support Shaft 10

being a “new source” in this case. Shaft 10 is

integrated with existing infrastructure—the Never

Sweat Tunnel and Shaft 9—to provide ventilation and

dewatering, which are essential components of the

mining process. These interconnected systems of

ventilation and drainage are essential physical

features of the mine structure. Thus, the integration

here materially differs from a situation where

the only connection between facilities is that “they are

supplied utilities ... from the same source” or that

their water is “treated in the same treatment

plant.” Id.

b. To what extent is the new facility engaged in

the same general type of activity as the existing

source?

¶57 We now consider the extent to which Shaft 10 “is

engaged in the same general type of activity as the

existing source.” 40 C.F.R. § 122.29(b)(1)(iii). Shaft 10

supports the ventilation and dewatering of

underground workings, which are necessary for the

exploration, study, and extraction of copper ore.

These are the same general types of activities as the

existing source (i.e., the original workings of the mine

that also supported ventilation and dewatering).

¶58 The Tribe argues that Shaft 10's activity is

different from prior activity at the existing mine. In

particular, the Tribe claims that dewatering Shaft 10

will be independent of the dewatering that previously

took place at a different point of extraction; the mine

has not been used to excavate copper ore for a period

of time; and Resolution plans to extract from a new,

APP-25

untouched ore body using a different mining

technique (panel caving) that will produce lower

grade copper ore and increase the amount of ore

production.

¶59 But these arguments miss the mark. The issue is

whether Shaft 10 “is engaged in the same general type

of activity as the existing source.” 40 C.F.R. §

122.29(b)(1)(iii) (emphasis added). It is not focused on

the specific manner by which “the same general type

of activity as the existing source” is conducted, such

as a precise mining technique, volume of production,

time period, or location. See also NPDES Permit

Regulations, 49 Fed. Reg. at 38044 (noting there is not

a new source “if a facility increases capacity merely by

adding additional equipment in one or two production

steps”). Here, the historical mining operation in

existence for over a century sunk new shafts and

provided the ventilation and dewatering necessary to

discover,

study,

and

extract

new

bodies *1109 of copper ore as the mine expanded in

an eastward direction. Shaft 10 is engaged in that

“same general type of activity”—providing ventilation

and dewatering necessary to discover, study, and at

some point extract copper ore (i.e., copper mining). 40

C.F.R. § 122.29(b)(1)(iii); see also NPDES Permit

Regulations, 49 Fed. Reg. at 38044 (“The second

clarifying factor that EPA has added is the extent to

which the construction results in facilities or

processes that are engaged in the same general type

of activity as the existing source. Under this second

factor, if the proposed facility is engaged in a

sufficiently similar type of activity as the existing

source, it will not be treated as a new source.”).

¶60 The Tribe also points to the following language

from the EPA's guidance: “Of course, to the extent the

construction results in facilities engaged in the same

APP-26

type of activity because it essentially replicates,

without replacing, the existing source, the new

construction would result in a new source.”

NPDES Permit Regulations, 49 Fed. Reg. at 38044.

But Resolution's sinking of a new shaft 300 feet from

Shaft 9 to pursue more ore does not “replicate” the

existing source. This is unlike the situation described

in the Federal Register where “a power company

builds a new, but identical and completely separate

power generation unit at the site of a similar existing

unit,” in which case “the new unit will be a new

source.” Id. Resolution constructed Shaft 10 and the

mine's other new features to mine copper ore adjacent

to the copper-ore deposits that were exhausted. There

is no “replication” in this case where those ore

deposits were exhausted. Merely pursuing a new ore

deposit in a mining area (as mines often do) does not

make a construction a “new source” by default—

instead, the “new source” criteria must be evaluated.

¶61 A construction is not a “new source” if it

merely could operate substantially independently of

the existing facility. The focus is on whether it

actually does operate

substantially

independently. See id. (noting the EPA's agreement

that it “should consider whether the new

facility actually operates substantially independently

of the existing facility, not whether it could operate

substantially independently” (emphasis added)). The

record does not establish that Shaft 10 does anything

on its own. It is instead fully integrated into the

mining process.

¶62 Ultimately, § 122.29(b)(1)(iii) requires us to

determine whether Shaft 10's “processes are

substantially independent of an existing source at the

same site.” “Site” is broadly defined as “the land or

water area where any ‘facility or activity’ is physically

APP-27

located or conducted, including adjacent land used in

connection with the facility or activity.” 40 C.F.R. §

122.2. Shaft 10, the mine water treatment plant, and

the other new features, such as the cooling tower, rock

stockpiles, and wash bays, are included in and

integrated into the same “site.” With Shaft 10 being

just 300 feet from Shaft 9, Resolution will continue

operating in the area where copper-ore mining

previously took place within the confines of an earlier

permit renewal.

¶63 We agree with ADEQ's explanation in its “new

source” analysis: “The new features added to the mine

are supporting the same process that has always

existed at the site, which is extracting ore by any

means or methods. Therefore, there are no processes

that are substantially independent of the existing

process to extract ore.” The record before us supports

this determination. Shaft 10 does not meet the

criteria in § 122.29(b)(1)(iii), and it therefore fails to

meet the definition of “new source” at step two.

3. Step Three

¶64 Although we conclude that Shaft 10 is not a “new

source” at step two, we proceed to apply the remainder

of the test at step three to clarify this issue of

statewide importance.

¶65 Section 122.29(b)(2) provides that “[a] source

meeting the requirements of paragraphs (b)(1)(i), (ii),

or (iii) of this section is a new source only if a new

source performance standard is independently

applicable to it.” Thus, step three requires us to

consider whether a new source performance standard

is “independently applicable” to Shaft 10. In essence,

this step differentiates between a *1110 “new source”

and a “new discharger,” because “[i]f there is no such

APP-28

independently applicable standard, the source is a

new discharger.” 40 C.F.R. § 122.29(b)(2).

¶66 The CWA sets forth new source performance

standards that apply to “discharges from ... [m]ines

that produce copper.” 40 C.F.R. § 440.100(a)(1); see

also 40 C.F.R. § 440.104(a) (explaining that the

effluent limitations in the new source performance

standards apply to “pollutants discharged in mine

drainage from mines that produce copper”). The CWA

does not provide a new source performance standard

for a single “shaft.” But the Tribe argues that Shaft 10

is “in and of itself a mine” under the CWA.

¶67 A “mine” is “an active mining area, including all

land and property placed under, or above the surface

of such land, used in or resulting from the work of

extracting metal ore or minerals from their natural

deposits by any means or method.” 40 C.F.R. §

440.132(g). “ ‘Active mining area’ is a place where

work or other activity related to the extraction,

removal, or recovery of metal ore is being conducted

....” 40 C.F.R. § 440.132(a).

¶68 These definitional provisions describe a “mine”

as a broader geographic area made up of “all land and

property” used in or resulting from the work of

extracting ore by any means or method.8 See All,

Merriam-Webster,

https://www.merriamwebster.com/dictionary/all (last

visited June 10, 2024) (defining “all” as “the whole

amount, quantity, or extent of; as much as possible;

every member or individual component of; the whole

number or sum of”). The descriptions of “all land and

property” and “a place where work or other activity

related to the extraction, removal, or recovery of metal

ore is being conducted” include Shafts 9 and 10, the

Never Sweat Tunnel, and other features that work

together to ventilate and dewater the underground

APP-29

workings necessary for Resolution to explore the

Eastern Deposit and extract copper ore. See 40 C.F.R.

§ 440.132(a), (g) (emphasis added). These provisions

do not describe a single shaft which “is the surface

opening

the

mine.” See

Development

Document, supra, at 49–50.

¶69 The Tribe claims that “Resolution will use Shaft

10 to extract copper ore from an untouched ore body.”

Resolution, however, asserts that “Shaft 10 would be

used for dewatering and ventilation, not to remove

ore.” The Tribe has not introduced any evidence to

support a finding that Resolution plans to excavate or

remove copper ore in the Eastern Deposit from Shaft

10. According to Resolution's General Plan of

Operations, in the event of future ore extraction, two

new shafts “will be production shafts dedicated to

hoisting ore and other rock material from the Mine”—

these will be Shafts 11 and 12. The Plan of Operations

does not state that Shaft 10 will be used for ore

extraction. Thus, we cannot speculate about such

alleged future use of Shaft 10. But even if Shaft 10 is

at some point used to extract a new ore deposit, this

does not automatically make it a “new source.” The

CWA's “new source” criteria applicable to mines could

have stated that a construction used to extract a new

ore deposit is a “new source.” But the CWA does not

take this rigid approach. Instead, when ADEQ

considers a discharge permit renewal, it must

consider each step of the “new source” criteria and the

evidence relevant to each step during the applicable

time period.

¶70 The ALJ's findings of fact—which the parties do

not challenge here—include testimony describing

Shaft 10 as a structure “related to the extraction,

removal or recovery of metal ore.”9 Shaft 10 is not

drilled directly into an ore body; it works with other

APP-30

features to conduct activities related to ventilating

and dewatering underground workings. It is therefore

a component of the mine and is not itself a “mine”

under § 440.132(g).

*1111 ¶71 Shaft 10 does not have a new source

performance standard “independently applicable” to

it. See, e.g., Mahelona v. Hawaiian Elec. Co., 418 F.

Supp. 1328, 1335 (D. Haw. 1976) (“[W]hile there are

standards of performance governing steam electric

generating plants, there are no regulations applicable

solely to discharge facilities.” (internal citation

omitted)). Because Shaft 10 does not meet step three

of the “new source” test, for this additional reason, it

is not a “new source” under the CWA. See 40 C.F.R. §

122.29(b)(2).

III. CONCLUSION

¶72 We vacate paragraphs 1–20 and 30–72 of the

court of appeals’ opinion.10 We affirm the superior

court's decision that Shaft 10 is not a “new source” and

that ADEQ acted within its discretion by issuing the

2017 Permit Renewal to Resolution.

Footnotes

Resolution plans to extend Shaft 9 to about the same

depth as Shaft 10 at some point.

Resolution also has plans to build a concentrator at

the western portion of the mine, as well as another

tunnel connecting the western and eastern portions of

the mine.

APP-31

Resolution also captures stormwater runoff using a

channeling system that diverts the water to a specific

area. From there, it can be pumped to another location

for evaporation or to the water treatment plant. The

main source of water sent to the water treatment

plant is from dewatering the underground mine

workings, but small volumes of industrial water and

stormwater are sent as well.

The federal CWA statutes and regulations at issue

here may have a corresponding state statute or

regulation due to implementation of the Arizona

Pollutant

Discharge

Elimination

System

Program. See, e.g., Ariz. Admin. Code R18-9A905(A)(1)(e) (incorporating by reference 40 C.F.R. §

122.29 (“New sources and new dischargers”) for the

Arizona Program Standards). In this Court, however,

the parties exclusively relied upon federal statutes

and regulations rather than citing any corresponding

state statute or regulation. Thus, we cite to the federal

provisions. No party has challenged the validity,

enforceability, or applicability of the CWA

regulations.

As the ALJ noted, the Tribe originally contended

Resolution developed a “new discharger” but later

withdrew that allegation and presented no

substantial evidence on the issue. We were not asked

to determine whether Shaft 10 is a “new discharger”

under the CWA, see, e.g., 40 C.F.R. § 122.2 (providing

a definition of “new discharger”). We therefore do not

address that issue or any requirement applicable to a

“new discharger.”

APP-32

At step one, we do not determine whether Shaft 10 is

itself a “mine” because new source performance

standards are applicable to copper mines in Subpart

J, 40 C.F.R. §§ 440.100 to .105.

The Tribe suggests that this “Court might remand for

a determination of whether Shaft 10 totally replaces

the prior mine(s) under subsection (b)(1)(ii).” We will

not do so for the reasons stated. But even if we were

inclined to do so, any remand would be futile because

we conclude that the “new source” test fails at both

steps two and three, see Part II(B)(2), (3) ¶¶ 63, 71.

The fact that a new mining method will be used for

the Eastern Deposit—panel caving—does not change

the analysis because the definition of “mine” includes

extraction “by any means or method.” 40 C.F.R. §

440.132(g).

The court of appeals explained that “the Tribe did not

challenge any specific factual determinations below”

and “[g]iven the parties have not raised any factual

issues on appeal, we need not resolve any questions of

fact.” San Carlos Apache Tribe, 254 Ariz. at 186 ¶ 28,

520 P.3d at 677. The same is true in this Court.

Paragraphs 21–29 address issues of mootness,

timeliness, and deference to factual determinations

below that no party challenged before this Court.

APP-33

San Carlos Apache Tribe v. State of Arizona

(SCAT I), 254 Ariz. 179, 520 P.3d 670 (App. Nov.

15, 2022).

Vice Chief Judge David B. Gass delivered the opinion

of the court, in which Presiding Judge Paul J.

McMurdie joined. Judge Angela K. Paton dissented.

OPINION

GASS, Vice Chief Judge:

*183 **674 ¶1 San Carlos Apache Tribe (the Tribe)

argues Resolution Copper Mining LLC's (Resolution)

copper-mining site is a new source under the Clean

Water Act (CWA) because Resolution recently sank

shaft 10. The CWA treats the new mine shaft as a

“new source” because it is substantially independent

of the non-contiguous original deposit at the mining

site. In short, Resolution radically changed the nature

of its existing mining site when it added the new mine

shaft—a 7,000-foot-deep shaft designed to use a

different mining technique to access a previously

untouched,

massive copper ore

deposit

that

Resolution predicts will “supply more than 25% of

America's demand for [copper] over the next 40

years.”

¶2 As a result, before the Arizona Department of

Environmental Quality (ADEQ) issues a permit to

allow Resolution to operate the new mine shaft,

ADEQ must adopt Total Maximum Daily Loads

(TMDLs) for Resolution's discharge of stormwater

and non-stormwater—including treated mine water,

industrial water, and seepage pumping—into Queen

Creek near the town of Superior because Queen Creek

is “impaired” for copper under the CWA.

APP-34

FACTUAL AND PROCEDURAL HISTORY

¶3 The controversy arises because ADEQ renewed

Resolution's Arizona Pollution Discharge Elimination

System (AZPDES) Permit No. AZ0020389 (the

permit). The permit ensures Resolution complies with

CWA water quality standards for copper mining. The

permit authorizes Resolution to discharge (1)

stormwater and (2) non-stormwater, including

treated mine water, industrial water, and seepage

pumping.

¶4 The permit also authorizes Resolution to discharge

those waters into an unnamed tributary to Queen

Creek near the town of Superior. Queen Creek is

“impaired” for copper under § 303(d) of the

CWA. See 33 U.S.C. § 1313(d). When discharging into

an impaired waterway, mines may not exceed

TMDLs. See infra ¶ 64–68. As such, Resolution and

ADEQ began drafting TMDLs for pollutants for the

impaired waterway, but the TMDLs remain in draft

form. See 40 C.F.R. § 130.7. The issue here is which

comes first: the permit or the TMDL. We conclude it

is the TMDL.

I. Historical Mining At The Superior Site

¶5 Resolution's mining site occupies a broad area of

land in and near Superior, and Resolution uses it for

underground copper mining activities. This area

includes the Superior Operations Mine, located along

Superior's northern boundary. Resolution's mining

site also includes surface facilities located 0.22 miles

north of Queen Creek in two non-contiguous areas

identified as the West Plant Site (the WPS) and the

East Plant Site (the EPS). The WPS is located

immediately northwest of Superior. The EPS is

located two miles east of Superior near the

intersection of Highway 177 and U.S. Highway 60.

APP-35

The mining site included two large copper-ore

deposits. The first was the now-exhausted ore body,

originally owned by Magma, located in the WPS. The

second is the recently discovered and untouched

Resolution ore body located in the EPS.

¶6 Resolution's mining site has a deep history.

Resolution acquired the mining site from a long line

of owners, stemming back to Magma, which built the

first iteration of the mining site at the WPS in 1912.

Magma constructed shafts Nos. 1 through 8 on the

WPS as part of its original mining site. In the 1970s,

Magma constructed shaft 9 on the EPS to facilitate

better access to the Magma ore body. Before that, the

Magma ore body was not accessible via the

EPS. Magma also constructed shaft 9 to identify other

ore bodies in the EPS. Magma connected the EPS to

the WPS through a tunnel facility called the Never

Sweat Tunnel. Magma used the Never Sweat Tunnel

to transport copper ore from shaft 9 to processing

facilities at the WPS.

II. Modern Development of the Superior Site

¶7 At one time, the owners extracted ore from the

Magma ore body. For extended periods, the owners

left the site all but destitute *184 **675 aside from

doing the bare minimum to maintain the site,

including groundwater pumping and exploration. In

the early-to-mid 1990s, the owner at the time, Broken

Hill Proprietary Company, Ltd. (BHP), discovered the

untouched Resolution ore body in the EPS.

¶8 Even after BHP discovered the Resolution ore

body, BHP ceased actively mining ore at the Superior

mining site in 1996 when it depleted the remaining

mineable reserves out of the Magma ore body. Two

years later, BHP ceased all other ore mining

activities—except for applying to renew the permit—

APP-36

for a variety of reasons, including the costs of

maintaining the mining site, falling copper prices,

limited data on the Resolution ore body, and a lack of

suitable infrastructure to exploit the Resolution ore

body. Since discovering the Resolution ore body more

than two decades ago, no mine owner has extracted

ore.

¶9 Starting in 2000, the Superior mining site

ownership changed hands, and Resolution began

exploring. In 2004, Resolution began planning new

additions at its mining site, including shaft 10, a

cooling tower, rock stockpiles, wash bays, and a Mine

Water Treatment Plant (MWTP). In 2008, Resolution

began constructing shaft 10—the most significant

addition. Around this time, Resolution also resumed

dewatering at the existing Magma facilities to help

facilitate a study for its new construction plans.

Dewatering uses water through a system of pumps,

pipes, and conveyances to process and access ore and

mine discharge drainage.

¶10 By December 2014, Resolution spent

approximately $500 million to complete shaft 10.

Shaft 10 is 30 feet in diameter and extends 6,943 feet

below ground surface (bgs). Resolution built shaft 10

about 300 feet away from shaft 9. Shaft 9, by contrast,

only extends 4,882 feet bgs—more than 2,000 feet shy

of shaft 10's depth. Resolution rehabilitated and

extended the Never Sweat Tunnel as part of

constructing shaft 10.

¶11 Since Resolution constructed shaft 10, the only

parts of the original mining site remaining

operational are the Never Sweat Tunnel and shafts 8

and 9. Resolution uses shaft 8 to dewater the WPS.

Resolution uses shaft 9 to support shaft 10, such as

for ventilation and flowing mine drainage from shaft

9 to shaft 10. Resolution still actively uses the Never

APP-37

Sweat Tunnel to pump mine drainage from shaft 10

to the WPS, where the MWTP processes it.

Resolution's focus with building the new facilities, like

shaft 10, has been to target the yet untouched

Resolution ore body.

¶12 Resolution plans to access the Resolution ore body

using panel caving. Panel caving is a variation of the

high-volume technique known as block caving.

Previously, the Superior site owners used adits and

tunnels. With panel caving, Resolution will access the

ore by caving in the ore zone and causing it to

collapse—which will eventually cause ground

subsidence. Resolution predicts the Resolution ore

body will “supply more than 25% of America's demand

for [copper] over the next 40 years.”

III. National Pollutant Discharge Elimination

System (NPDES) And AZPDES Permitting

Activities

¶13 The Environmental Protection Agency (EPA)

issued the original permit in 1975. The EPA issued

the permit, including its renewals, until 2002, when

the State of Arizona took primacy over the CWA and

the NPDES permitting. Since then, ADEQ has issued

permits to individuals, including Resolution for its

copper-mining site.

¶14 In 2015, Resolution applied to renew the permit.

In 2017, ADEQ issued the renewed permit, which had

an effective date of January 23, 2017, and an

expiration date of January 22, 2022. The renewed

permit allowed Resolution to operate its mining site,

including shaft 10 and the other new facilities at the

site, and treated them as existing sources.

IV. Procedural

Challenges

Posture

and

Permitting

APP-38

¶15 Several months after the renewal, the Tribe

challenged ADEQ's treatment of shaft 10 and several

other new facilities before the Water Quality Appeals

Board (the Board). The Tribe argued those facilities

were

new

sources,

not

existing

sources,

under *185 **676 40 C.F.R. §§ 122.2, 122.29. The

Board referred the matter to the Office of

Administrative Hearings (OAH) for an evidentiary

hearing. In February 2018, OAH held the hearing

before an OAH administrative law judge (ALJ). And

on October 15, 2018, the ALJ issued findings of fact

and conclusions of law, deciding ADEQ generally did

not act arbitrarily and capriciously when it renewed

the permit in 2017. The ALJ, however, took exception

to ADEQ's failure to consider whether Resolution's

new facilities, including shaft 10, were new sources

under 40 C.F.R. §§ 122.2, 122.29(b). See infra ¶ 37.

The ALJ, thus, recommended the Board remand the

matter to ADEQ to conduct a new source analysis

under 40 C.F.R. § 122.29(b). The ALJ did not decide

whether Resolution's site was a new source.

¶16 In November 2018, the Board remanded the

matter to ADEQ to conduct a new source analysis.

The Board's remand order also allowed ADEQ to

ignore some of the ALJ's findings of fact and

conclusions of law when ADEQ conducted the new

source analysis.

¶17 In 2019, ADEQ issued its new source analysis.

ADEQ's new source analysis concluded Resolution's

mining site was not subject to new source

performance standards (NSPS) because the site was

existing

source

under 40

C.F.R.

§§

122.2, 122.29(b) and did not contain new sources

under the CWA. See infra ¶ 37. ADEQ reasoned new

source standards must apply to “the mine as a whole”

and not to discrete facilities, such as shaft 10 because

APP-39

the regulations only provide independently applicable

standards for copper mines and not for any of the new

features.

¶18 In March 2019, the Tribe challenged the Board's

November 2018 order remanding the matter for

ADEQ to conduct a new source analysis, arguing it

was error for the Board to allow ADEQ to ignore

certain portions of the ALJ's findings of fact and

conclusions of law.

¶19 In June 2019, the Board issued its final

administrative decision, upholding ADEQ's issuance

of the permit to Resolution. The Board also denied the

Tribe's challenge to the Board's November 2018 order.

In doing so, the Board adopted all the ALJ's findings

of fact, including those it allowed ADEQ to ignore in

its November 2018 order.

¶20 The Tribe appealed the Board's 2019 decision to

the superior court under A.R.S. § 12-905. The superior

court upheld the Board's decision, including its

findings of fact and conclusions of law. The Tribe

timely appealed. This court has jurisdiction

under article VI, section 9, of the Arizona

Constitution, and A.R.S. §§ 12-913, 12-120.21.A.1,

and 12-2101.A.1.

ANALYSIS

V. The Validity Of The Permit Is Not Moot.

¶21 Because the permit at issue here expired on

January 22, 2022, this appeal appears to lack a live

controversy. See Kondaur Cap. Corp. v. Pinal Cnty.,

235 Ariz. 189, 192–93, ¶¶ 8–9, 330 P.3d 379, 382–83

(App. 2014) (issues involving a corporation's ability to

seek enforcement of a writ of restitution allowing it to

evict occupants of its property became moot when the

occupants already were evicted by other means). The

parties did not raise mootness. We questioned the

APP-40

parties about mootness at oral argument, and,

therefore, exercise our discretion to decide whether

this matter has become moot. See Big D Constr. Corp.

v. Court of Appeals for State of Ariz., Div. One, 163

Ariz. 560, 562–63, 789 P.2d 1061, 1063–64 (1990).

¶22 The issue here presents a live controversy despite

the appearance to the contrary. ADEQ is authorized

to administratively extend expired AZPDES permits

if: (1) the owner of the mining site applies for a

renewal of its permit 180 days before the permit

expires and (2) ADEQ has not yet issued a new permit

to the owner. See 40 C.F.R. § 122.6(d) (“States

authorized to administer the NPDES program may

continue either EPA or State-issued permits until the

effective date of the new permits, if State law

allows.”); A.A.C. R18-9-B904.B.1 (AZPDES permittee

must apply to renew its permit 180 days before the

permit

expiration

date); A.A.C.

R18-9B904.C (continuation beyond the AZPDES permit

date is permitted if: (1) *186 **677 the permittee has

timely applied before the permit expires and the

permitted activity is continuing; and (2) ADEQ “is

unable, through no fault of the permittee, to issue an

AZPDES permit on or before the expiration date of the

existing permit”). Here, we take judicial notice of

Resolution applying to renew the permit on July 23,

2021—180 days before the permit expired. Draft Fact

Sheet: Arizona Pollutant Discharge Elimination

System (AZPDES), Ariz. Dep't of Env't Quality 1,

https://static.azdeq.gov/pn/azpdes_rcml_fs.pdf (last

visited Oct. 3, 2022); see Giragi v. Moore, 48 Ariz. 33,

41–42, 58 P.2d 1249 (1936); Ariz. R. Evid. 201(b). We

also take judicial notice of ADEQ issuing draft forms

of the renewed permit. Draft Permit: Authorization to

Discharge Under the Arizona Pollutant Discharge

Elimination System, Ariz. Dep't of Env't Quality,

APP-41

https://static.azdeq.gov/pn/azpdes_rcml_dp.pdf (last

visited Oct. 3, 2022); see Moore, 48 Ariz. at 41–42, 58

P.2d 1249; Ariz. R. Evid. 201(b). Resolution, thus,

continues to operate its mining site under the permit

at issue here.

VI. The Tribe Untimely Appealed The Board's

November 2018 Order.

¶23 The Tribe argues the Board erred when it did not

give a written justification for the November 2018

order. In that order, the Board allowed ADEQ to

disregard portions of the ALJ's findings of fact and

conclusions of law. The Tribe argues the order

modified the ALJ decision, requiring written

justification. The State correctly contends the Tribe's

challenge is untimely because the Tribe did not file its

challenge until over 100 days later.

¶24 “[T]he decision of the Board [to reject or modify

the ALJ's decision] is the final administrative

decision.” A.A.C. R2-17-124.A.2. Under A.R.S. § 12904, a party must commence “an action to review a

final administrative decision ... by filing a notice of

appeal within thirty-five days from the date” it

receives a copy of that decision.

¶25 Because the Tribe waited over 100 days to

challenge the Board's November 2018 order and the

Board's decision to modify or reject an ALJ's decision

was a final agency decision, the Tribe untimely

challenged the Board's November 2018 order.

VII. Because The Parties Raise No Issues Of

Fact On Appeal, We Need Not Address The 2021

Amendment To § 12-910.F Regarding This

Court's Deference To Agencies’ Determinations

Of Questions Of Fact.

¶26 In 2021, during the pendency of this appeal, the

Arizona Legislature modified § 12-910.F to include

APP-42

language providing, “In a proceeding brought by or

against the regulated party, the court shall decide all

questions of fact without deference to any previous

determination that may have been made on the

question by the agency.” See 2021 Ariz. Laws, ch. 281,

§ 1 (S.B. 1063) (1st Reg. Sess.) (amending A.R.S. § 12910.F). Before the amendment, Arizona courts held “a

reviewing court may not substitute its judgment for

that of the agency on factual questions or matters of

agency expertise.” See WildEarth Guardians, Inc. v.

Hickman, 233 Ariz. 50, 53, ¶ 7, 308 P.3d 1201, 1204

(App. 2013).

¶27 Resolution argues we should not decide the

constitutionality of the 2021 amendment because

none of the parties dispute any of the facts below. We

agree.

¶28 The Tribe contends it raised issues of fact because

it challenged the superior court's decision, “including

the factual error that the Resolution [m]ine was the

same mine as the more than 100-year-old Magma

[m]ine.” But, as we will discuss, this issue is a

question of law, not fact. See infra ¶¶ 33–35. Cf. State

v. Romero, 248 Ariz. 601, 604, ¶ 12, 463 P.3d 225, 228

(App. 2020) (issue of whether the defendant

knowingly engaged in criminal conduct is a question

of fact because it “refers to factual knowledge”). The

Tribe also contends whether the superior court's

apparent assumption of the Tribe's motivations for

disputing the permit improperly influenced its

decision to uphold the permit is a question of fact. But

the Tribe did not challenge any specific factual

determinations below. Given the parties have not

raised any factual issues on appeal, we need not

resolve any questions of fact.

APP-43

*187 **678 ¶29 Accordingly, we need not resolve

issues relating to the constitutionality of the 2021

amendment to subsection F.

VIII. Shaft 10 Is A New Source Under The CWA.

¶30 A “new source” under the CWA is “any building,

structure, facility, or installation from which there is

or may be a ‘discharge of pollutants,’ the construction

of which commenced ... [a]fter promulgation of

standards of performance under section 306 of CWA

which are applicable to such source.” 40 C.F.R. §

122.2; see also 33 U.S.C. § 1316(a)(2) (same). A source

is “a new source only if a new source performance

standard is independently applicable to it.” 40 C.F.R.

§ 122.29(b)(2). By contrast, the CWA grandfathers in

an “existing source,” which is a source permitted

before the EPA promulgated performance standards

independently

applicable

the

source.

NPDES Permit Regulations, 49 Fed. Reg. 37,998,

38,042–43 (Sept. 26, 1984) (to be codified at 40 C.F.R.

§ 122.21(k)(4)). This distinction exists because new

sources “have never operated under a previously

issued permit and ... are considered to be in a better

position than existing sources to install and ‘start up’

their equipment and meet the [more stringent NSPS]

permit limitations.” Id. at 38,034.

¶31 Resolution and the State argue all the sources in

Resolution's mining site are existing sources under

the CWA because a source must be subject to

independently applicable standards to be a new

source, and the only applicable standard applies to

the “mine as a whole.” Resolution and the State,

therefore, conclude the mining site is not subject to

NSPS because the mining site has existed since 1912,

APP-44

and as a result, any additional structure or facility

must be an existing source.

¶32 The Tribe contends “discrete pollutantgenerating structures and facilities can themselves be

new sources[,]” including the additions Resolution

made since the EPA promulgated standards

for copper mining in 1982. The Tribe further contends

Resolution's additions effectively created a distinct

mine from the original Magma mine, and the new

mine should be subject to new source analysis.

¶33 We first address our standard of review for

ADEQ's determinations of issues related to the new

source analysis. Second, we discuss whether the EPA

promulgated any independently applicable standards

for the types of sources Resolution constructed at its

mining site after the EPA promulgated standards for

copper—more specifically, we decide whether shaft 10

“mine”

under 40

C.F.R.

§§

440.100, 440.132(a), (g). Third, we decide whether

shaft 10 is subject to independently applicable NSPS.

Fourth, we resolve whether shaft 10 is a new source

under the 40 C.F.R. § 122.29(b)(1) criteria (further

defining what is required for a source to be classified

as a new source).

A. We Review ADEQ's New Source Analysis De

Novo.

¶34 This court generally reviews de novo “the

decisions reached by the administrative officer and

the superior court” when reviewing questions of law

involving an agency's “legal interpretation of a

statute.” Eaton v. Ariz. Health Care Cost Containment

Sys., 206 Ariz. 430, 432, ¶ 7, 79 P.3d 1044, 1046 (App.

2003). Principles of statutory construction apply to

federal regulations. See Env't Def. v. Duke Energy

Corp., 549 U.S. 561, 573–74, 127 S.Ct. 1423, 167

APP-45

L.Ed.2d 295 (2007) (applying principles of statutory

construction to regulations the EPA promulgated

under the Clean Air Act); Time Warner Ent. Co., L.P.

v. Everest Midwest Licensee, L.L.C., 381 F.3d 1039,

1050 (10th Cir. 2004) (applying “general rules of

statutory construction” to Federal Communication

Commission's regulations). This court construes a

regulation “and its subsections as a consistent and

harmonious whole.” See State v. Green, 248 Ariz. 133,

135, ¶ 8, 459 P.3d 45, 47 (2020).

¶35 This court starts by “giv[ing] words their plain

meaning unless it is impossible to do so or absurd

consequences will result.” Marsoner v. Pima Cnty.,

166 Ariz. 486, 488, 803 P.2d 897, 899 (1991); see

also Allstate Ins. Co. v. Universal Underwriters, Inc.,

199 Ariz. 261, 264, ¶ 8, 17 P.3d 106, 109 (App. 2000).

When a case involves the intersection *188 **679 of

multiple statutes or regulations, this court

“construe[s] them together, seeking to give meaning

to all provisions.” See State v. Francis, 243 Ariz. 434,

435, ¶ 6, 410 P.3d 416, 417 (2018) (cleaned up).

¶36 This court gives a federal agency's interpretation

of the federal law it administers the level of deference

annunciated by the United States Supreme Court

in Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467

U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984). See Eaton, 206 Ariz. at 434, ¶ 16, 79 P.3d at

1048. By contrast, “[a] state agency's interpretation of

a federal statutes is not entitled to the deference

afforded a federal agency's interpretation of its own

statutes under Chevron.” Orthopedic Hosp. v. Belshe,

103 F.3d 1491, 1495 (9th Cir. 1997); see also Arizona

v. City of Tucson, 761 F.3d 1005, 1014 (9th Cir. 2014).

Instead, this court “review[s] de novo a state agency's

interpretation of a federal [law].” See Belshe, 103 F.3d

at 1495. Further, the Arizona Legislature amended

APP-46

A.R.S. § 12-910.F (providing the standards of review

for final administrative decisions) in 2018 to abolish

what is commonly known as the Chevron doctrine in

Arizona. See 2018 Ariz. Laws, ch. 180, § 1 (2d Reg.

Sess.) (H.B. 2238) (amending A.R.S. § 12-910.E) (“In a

proceeding brought by or against the regulated party,

the court shall decide all questions of law, including

the interpretation of a constitutional or statutory

provision or a rule adopted by an agency, without

deference to any previous determination that may

have been made on the question by the agency.”).

B. Because Shaft 10 Is A “Mine,” It Is A Type Of

Source

Subject

CWA Copper Mining

Regulations.

¶37 The State contends “independently applicable

standard” under 40 C.F.R. § 122.29(b)(2) means the

EPA must have made standards independently

applicable to the types of sources Resolution

constructed at its site after 1982 to classify those

sources as new sources. And the State urges this court

to affirm ADEQ's decision to renew the permit

because the only applicable standard under 40 C.F.R.

§ 440, Subpart J is for “the mine as a whole.”

¶38 Under 40 C.F.R. § 122.29(b)(2), “[a] source

meeting the requirements of paragraphs (b)(1)(i), (ii),

or (iii) of this section is a new source only if a new

source performance standard is independently

applicable to it. If there is no such independently

applicable standard, the source is a new

discharger.” See In re: Phelps Dodge Corp., Verde

Valley Ranch Dev., 10 E.A.D. 460, 2002 WL 1315601,

at *15 (EAB 2002) (discussing the need for an

independently applicable standard to categorize a

source as a new source under the CWA). NSPS only

go into effect once the EPA promulgates performance

standards independently applicable to the type of

APP-47

source the EPA is permitting. 40 C.F.R. § 122.2; see 33

U.S.C. § 1316(a)(2).

¶39 The EPA promulgated the most recent

performance standards for copper mines in 1982. Ore

Mining and Dressing Point Source Category Effluent

Limitation Guidelines and New Source Performance

Standards, Final Rule, 47 Fed. Reg. 54,598 (Dec. 3,

1982).

source

producing

pollution

from copper mining activities, thus, may only be a

new source if it was constructed after 1982 and an

independent standard applies to such a source. See 40

C.F.R. § 122.2; see also 33 U.S.C. § 1316(a)(2).

¶40 The standards for copper mining apply to only a

few types of sources, and here the only applicable

standard

for

“mines.” See 40

C.F.R.

440.100(a) (“provisions of this subpart are applicable

to discharges from ... [m]ines that produce copper”

from “open-pit or underground operations”). The other

types of sources subject to independently applicable

standards under this section are “mills” and “mines

and mills,” which do not apply here because there are

no copper mills

issue. See 40

C.F.R.

440.100(a)(2)–(4). A plain reading of the controlling

regulations requires this result, and we agree with the

State to the extent it argues the only independently

applicable standard is for “mines.” See Marsoner, 166

Ariz. at 488, 803 P.2d at 899. But that determination

does not end our analysis.

¶41 Because “mines” are the only type of source

subject to independently applicable standards here,

we must determine whether *189 **680 any sources

Resolution constructed at its mining site after 1982

fall within the definition of a “mine.” The EPA

provides three terms guiding our interpretation of

what a “mine” means. The first term, “active mining

area,” is “a place where work or other activity related

APP-48

to the extraction, removal, or recovery of metal ore is

being conducted.” 40 C.F.R. § 440.132(a). The second

term, “mine,” is:

[A]n active mining area, including all

land and property placed under, or above

the surface of such land, used in or

resulting from the work of extracting

metal ore or minerals from their natural

deposits by any means or method,

including secondary recovery of metal

ore from refuse or other storage piles,

wastes, or rock dumps and mill tailings

derived from the mining, cleaning, or

concentration of metal ores.

40 C.F.R. § 440.132(g) (emphasis added). The third

and most expansive of the three terms, “site,” means

“the land or water area where any ‘facility or activity’

is physically located or conducted, including adjacent

land used in connection with the facility or

activity.” 40 C.F.R. § 122.2.

¶42 These three terms are like nesting dolls in that

an “active mining area” falls squarely within the

definition of a “mine.” Thus, if a source would qualify

as an “active mining area,” it would also qualify as a

“mine.” And because a “mine” and “active mining

area” are each examples of “the land area where any

‘facility or activity’ is physically located or conducted,”

both an “active mining area” and “mine” neatly fit into

the term “site.” The term “site,” however, cannot nest

within the terms “mine” or “active mining

area.” See infra ¶ 44.

¶43 The State argues new additions to Resolution's

mining site, including shaft 10, cannot be considered

new sources because the only applicable standards

are for “mines,” which can only mean the “mine as a

APP-49

whole.” But the term “mine,” as defined by 40 C.F.R.

§ 440.132(g) (defining “mines” in the ore mining

context, including copper mining), does not mean the

“mine as a whole.” Instead, a “mine” is a discrete

structure used for “extracting ore or minerals,” such

as shaft 10. See 40 C.F.R. § 440.132(g) (a mine “is an

active mining area, including all land and

property placed under, or above the surface of such

land, used in or resulting from the work of extracting

metal ore or minerals from their natural deposits by

any means or method”) (emphasis added); 40 C.F.R. §

440.132(a) (an active mining area “is a place where

work or other activity related to the extraction,

removal, or recovery of metal ore is being

conducted”); see Marsoner, 166 Ariz. at 488, 803 P.2d

at 899.

¶44 If the State was correct in arguing we must look

to the mining site “as a whole,” then it would render

the new source rule under 40 C.F.R. § 122.29 null as

applied

new

facilities

mining

sites. See Chaparral Dev. v. RMED Int'l, Inc., 170

Ariz. 309, 313, 823 P.2d 1317, 1321 (App. 1991) (this

court harmonizes conflicting language of different

parts of the statute to give effect to both); Cleckner v.

Ariz. Dep't of Health Servs., 246 Ariz. 40, 43, ¶ 9, 433

P.3d 1200, 1203 (2019) (this court strives “to give

meaning to each word, phrase, clause and sentence so

that no part of that legislation will be void, inert or

trivial”); see also Patterson v. Maricopa Cnty. Sheriff's

Off., 177 Ariz. 153, 157, 865 P.2d 814, 818 (App.

1993) (applying statutory construction principles to

read a portion of a rule in harmony with other parts

of the rule to “give effect to the [framers’] intent

behind” the rule). Indeed, the EPA wrote 40 C.F.R. §

122.29 to provide a framework to decide whether an

APP-50

addition to a mining site is a new source. See infra ¶¶

48–60.

¶45 Shaft 10 neatly falls within the description of a

“mine,” as opposed to a “site.” As applied here, shaft

10 is an area of “land” (a 7,000-foot-deep hole) and

“property” (a shaft is a man-made facility). See 40

C.F.R. § 440.132(g). Shaft 10 is located “under ... the

surface of such land,” and Resolution has used the

shaft to implement its plans to “extract[ ] metal ore or

minerals from their natural deposits.” See 40 C.F.R. §

440.132(g). And because Resolution is using shaft 10

to further its expansion of the site to

extract copper from the new ore body, shaft 10 is “a

place where work or other activity related to the

extraction, removal, or recovery of metal ore is being

[or will be] conducted.” See 40 C.F.R. § 440.132(a).

Shaft 10, thus, squarely *190 **681 falls within the

plain meaning of the definitions of an “active mining

area” and a “mine.” As such, the EPA effectively

provided an independently applicable standard for

mining shafts—at least to the extent they qualify as

“mines” or “active mining areas.” See Francis, 243

Ariz. at 436, ¶¶ 9–10, 410 P.3d at 418 (interpreting

interrelated statutes together to discern their

meaning); cf. Verde Valley Ranch Dev., 10 E.A.D. 460,

2002 WL 1315601, at *16 (“Phelps Dodge's active

maintenance of the tailings site (i.e., sprinkling with

water to reduce dust blowing off the site surface) over

the past years ... cannot reasonably be categorized as

active pursuit or processing of ore within the meaning

of the copper mining NSPS.”). Moreover, though the

ALJ did not decide whether shaft 10 was a new

source, the ALJ decided shaft 10 was a “mine” when

the matter was before the OAH, in part, because

Resolution was using it to further its mining activity,

such as the production of mine drainage.

APP-51

¶46 Further, contrary to the State's argument, the

EPA's regulatory framework does not require us to

consider all “active mining areas” within Resolution's

mining “site” when determining whether a source is a

new or existing source. Here, the State has confused

the term “mine” with the term “site” when arguing we

must consider “the mine as a whole.” See 40 C.F.R. §§

122.2, 440.132(g). In contrast to the EPA's definition

of a “mine,” the EPA's definition of a “site” includes

“adjacent land used in connection with the facility or

activity.” We cannot define a mining shaft as a “site”

rather than a “mine” because of this additional

requirement. Here, we have determined Resolution's

shaft 10 is one “mine” of at least one or more “mines”

or “active mining areas” operating within Resolution's

mining “site.” We, therefore, need not determine

whether the mining site “as a whole” is a new source.

¶47 Our interpretation of the EPA's regulations is

consistent with the EPA's guidance on new sources,

which we find persuasive. See Christensen v. Harris

Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d

621 (2000) (an administrative body's informal

guidance on a regulation is not binding but may be

persuasive “to the extent that those interpretations

have the ‘power to persuade’ ”) (citations omitted).

Indeed, the EPA provided several materials

explaining parts of a discharger's site may be subject

to NSPS while others are subject to existing source

standards when the discharger constructs a new

building,

structure,

installation

site. See Memorandum from Linda Boornazian,

Director Water Permits Division, Office of

Wastewater Management, and Mary Smith,

Engineering & Analysis Division, Office of Science &

Technology Office of Water, to Regional Water

Division Directors, at 3 (Sept. 28, 2006) (“[I]f the new

APP-52

source is a new installation of process equipment at

an existing facility, part of the facility may be subject

to existing source standards and other parts of the

facility subject to new source standards.”);

NPDES Permit Regulations, 49 Fed. Reg. 37,998,

38044 (Sept. 26, 1984) (to be codified at 40 C.F.R. §

122.29(b)) (“[I]f a facility replicates an existing

facility, the fact that it shares or uses common land

with another source does not prevent it from being

considered a new source.”).

¶48 Resolution, nonetheless, argues its interpretation

of the new source regulations, requiring this court to

look to the “whole mine” when deciding whether shaft

10 is a new source, is consistent with EPA

interpretations of a new source. Resolution cites past

NPDES permits to support its proposition. Though

EPA interpretations of regulations do not necessarily

receive Chevron deference,

“[c]ogent

[federal]

administrative

interpretations

...

warrant

respect.” Alaska Dep't of Env't Conservation v. U.S.

E.P.A., 540 U.S. 461, 488, 124 S.Ct. 983, 157 L.Ed.2d

967 (2004). But Resolution's examples of past EPA

permitting decisions are distinguishable from the

permit

here

because

none

were

for

underground copper mines. Several of the cited EPA

permits, for instance, were for coal mines, which are

subject to “new source coal mine” standards. See 40

C.F.R. § 434.11(j)(1). Even so, those permits do not

necessarily assist Resolution's proposition, and some

even cut against it. Indeed, the regulatory definition

of “new source coal mine” requires agencies to

consider whether the regulated body created new

shafts when deciding if a mine is a new source. See 40

C.F.R. § 434.11(j)(1) (a new *191 **682 source may

also arise from a “major alteration” to an existing site,

such as the “construction of a new shaft”). A new

APP-53

shaft, therefore, could be a “mine” and new source in

the context of a coal mine as well.

C. Because Shaft 10 Is A “Mine” And Shaft 10

Produces Mine Drainage, Shaft 10 Is Subject To

“Independently Applicable Standards.”

¶49 For an agency to classify a source as a new source,

the source must:

(1) Be one of the types of sources the

EPA has enumerated as being applicable

to performance standards—here, the

applicable regulation is 40 C.F.R. §

440.100 (listing the types of sources

subject to copper mining standards)—

and

(2) Produce the type of wastewater

discharge governed by the NSPS.

See 40 C.F.R. § 122.29(b)(2) (a source meeting the

requirements of § 122.29(b)(1) “(i), (ii), or (iii) is a new

source only if a [NSPS] is independently applicable to

it”). Here, NSPS are independently applicable to shaft

10. First, as explained above, shaft 10 is a “mine” and,

thus, is one of the types of sources specifically

promulgated as applicable to the standards

for copper. See supra ¶¶ 44–47. Second, shaft 10 is

subject to NSPS under 40 C.F.R. § 440.104(a) because

this standard applies to mine drainage from

underground copper mining operations and shaft 10

produces mine drainage.

¶50 The dissent believes we embark on our analysis

out of order. As explained above, ignoring whether a

new construction is a mine undercuts the effect of

entire sections of federal regulations. We decline this

path and instead give force to every word of the

regulations by considering whether shaft 10 is a mine.

In doing so, traditional canons of statutory

APP-54

interpretation guide our path. And ADEQ's own flow

chart confirms our approach. See Appendix A.

¶51 Accordingly, the EPA has provided an

independently applicable NSPS standard for shaft 10.

But that does not end our analysis.

D. Shaft 10 Is A New Source Under The 40 C.F.R.

§ 122.29(b) Criteria.

¶52 Next, to determine whether shaft 10 is a new

source, we must decide if it meets one of the three new

source criteria under 40 C.F.R. § 122.29(b). Because

we decide only whether the third criteria applies, we

decline to address the parties’ arguments about the

other two criteria.

¶53 To be classified as a new source, a source must

meet one of the following criteria: (1) “[i]t is

constructed at a site at which no other source is

located”; (2) “[i]t totally replaces the process or

production equipment that causes the discharge of

pollutants at an existing source”; or (3) “[i]ts processes

are substantially independent of an existing source at

the same site.” 40 C.F.R. § 122.29(b)(1)(i)–(iii).

¶54 The State argues shaft 10 is not “substantially

independent” from other structures on the site but is

fully integrated, and thus should not be considered a

new source. Because Resolution only recently built

shaft 10, heavily modified other nearby existing

structures to facilitate the use of shaft 10, and

operated or has plans to operate shaft 10

for copper mining so as not to replace but replicate

existing source's copper mining activity, we disagree.

¶55 In 1984, the EPA amended the third prong—

regarding “whether the [source's] processes are

substantially independent”—of the new source

APP-55

analysis test by requiring agencies to consider factors:

(1) “the extent to which the new facility is integrated

with the existing plant”; and (2) “the extent to which

the new facility is engaged in the same general type

of activity as the existing source.” See NPDES Permit

Regulations, 49 Fed. Reg. 37,998, 38,048 (Sept. 26,

1984) (to be codified at 40 C.F.R. § 122.29(b)(1)(iii)).

¶56 The application of the 40 C.F.R. §

122.29(b)(1)(iii) criterion presents an issue of first

impression to this court. The State, Resolution, and

the Tribe provided no authority other than federal

guidance from the EPA, and—aside from that

guidance—we also found none.

¶57 The State contends categorizing any new

facilities

the

mining

site,

such

shaft *192 **683 10, would contradict the EPA's

intent

when

amended 40

C.F.R.

122.29(b)(1)(iii) by adding two additional factors. To

support this proposition, the State cites the EPA's

discussion of the policy and application of the

“substantially independent” factor in NPDES Permit

Regulations, 49 Fed. Reg., 37,998, 38,048 (Sept. 26,

1984). But the EPA's guidance on the new rule

establishes shaft 10 is a new source. Under the first of

the two new factors, the EPA explains:

[A] minor change[, such as a plant's

installation of a new purification step in

its process, like a new filter or

distillation column,] would be integral to

existing operations and would not

require the facility to be reclassified as a

new source. However, on the other

extreme, if the only connection between

the new and old facility is that they are

supplied utilities such as steam,

electricity, or cooling water from the

APP-56

same source or that their wastewater

effluents are treated in the same

treatment plant, then the facility will be

a new source.

Id. Here, shaft 10 falls in the latter category as shaft

10 is not some insignificant process added to

Resolution's mining site. Instead, shaft 10 is a brand

new 7,000-foot-deep mining shaft. And though shaft

10 uses other facilities from other areas of the mining

site to assist in ore production, such as Resolution's

use of shaft 9 to pass mine drainage from shaft 9 to

shaft 10, other pertinent facts show shaft 10 is a new

source. Resolution modified several of these preexisting structures, such as the Never Sweat Tunnel,

to facilitate its $500 million investment in shaft

10. Further, Resolution also built shaft 10 over 300

feet away—laterally from shaft 9—to construct a new

underground mining operation to extract copper from

the new and as yet untouched ore body in the EPS.

¶58 The EPA's guidance on the second factor—

whether the source engages in the “same general type

of activity as the existing source”—also cuts against

the State's argument. Under the second factor, the

EPA explains, “if the proposed facility is engaged in a

sufficiently similar type of activity as the existing

source, it will not be treated as a new source.” Id. at

38,044. On first blush, Resolution's plans to use shaft

10 to mine copper appear to fall under the same type

activity

the

mining

site—

specifically, copper mining. See id. (“For example, if a

plant begins to produce a new product, e.g., nylon

synthetic fiber, which is very similar to the product

currently being produced by that plant, e.g., polyester

synthetic fiber, using equipment that is essentially

the same as the existing production equipment, this

would likely be considered an existing source.”). The

APP-57

EPA, however, goes on to explain, “Of course, to the

extent the construction results in facilities engaged in

the same type of activity because it essentially

replicates, without replacing, the existing source, the

new construction would result in a new

source.” Id. On this precise point, the State's

argument collapses in on itself.

¶59 Resolution built shaft 10, a completely new

mining shaft, exceeding the depth of the nearest shaft

(shaft 9) by over 2,000 feet bgs. And Resolution

constructed shaft 10 approximately 300 feet away

from shaft 9. Though Resolution repurposed shaft 9 to

help facilitate mining in shaft 10 and no longer uses

shaft 9 for mining ore, Resolution still has plans to

expand shaft 9 by extending it to the same depth as

shaft 10. And though Resolution has plans to stop

using shaft 9 to extract copper ore, none of the parties

have given us any reason to determine Resolution is

using shaft 10 to replace shaft 9. Instead, Resolution

built structures, such as shaft 10, to expand its

mining site to begin mining the new, untouched ore

body on the EPS—a feat BHP was unable to

accomplish with the limited capabilities of older

structures like shaft 9. Resolution also plans to use

panel caving, a new and high-volume mining

technique to access the untouched ore body, which

Resolution's predecessors did not use when shaft 9

was producing ore. Resolution, thus, “replicated” the

WPS when it constructed shaft 10 in the hopes of

supplying over a quarter of our nation's copper needs.

Indeed, the ALJ even referred to Resolution's site as

being made up of “two non-contiguous areas,” the EPS

and the WPS, which the superior court adopted on

appeal. Our determination is consistent with ADEQ's

concession that “shaft 10 would be a new source” if it

APP-58

had been subject to

performance standards.

independently

applicable

*193 **684 ¶60 Moreover, the State's use of other

portions of the EPA's guidance is unconvincing and,

in fact, supports a contrary result to the one it urges

us to adopt. The State, for instance, cites to a portion

of the EPA's guidance explaining the “substantial

independence test was aimed at ascertaining whether

an existing source which undertakes major

construction that legitimately provides it with the

opportunity to install the best and most efficient

production processes and wastewater treatment

technologies should be required to meet new source

performance

standards

that

facility.” See NPDES Permit Regulations, 49 Fed.

Reg. 37,998, 38,043 (Sept. 26, 1984). Indeed,

Resolution built shaft 10 well after 1982 and at a time

when it had “the opportunity to install the best and

most efficient production processes and wastewater

treatment

technologies.” See id. And

because

Resolution “undert[ook] major construction” when it

recently dug shaft 10, the facility, according to the

EPA's own words, “should be required to meet new

source performance standards.” See id. And, as the

ALJ aptly observed, the State's argument “that any

new buildings, structures, facilities, or installations

constructed at a copper mine that began operations

before Subpart J was promulgated” is inconsistent

with the regulatory framework and EPA guidance. A

contrary result would mean Resolution could

continuously sink shafts into its property and

perpetually expand its mining site without being

subject to NSPS so long as those structures were

constructed on lands adjacent to its copper mining

site.

APP-59

¶61 Accordingly, shaft 10—though not completely

independent from other sources—is substantially

separate to be classified as a new source under §

122.29(b)(1)(iii). Shaft 10, thus, is a new source and

Resolution's mining site is subject to NSPS under 40

C.F.R. § 440.104(a).

IX. To Comply With The CWA And For ADEQ To

Permit Resolution's Site, Resolution And ADEQ

Must Finalize The Ongoing TMDLs For Queen

Creek, And Resolution Must Show The Site Will

Comply With Applicable Water Quality

Standards.

¶62 The Tribe contends ADEQ may not issue the

permit to Resolution because shaft 10 is a new source

and Queen Creek is an impaired waterway. We

disagree. Though permitting a new source for

impaired waterways is more arduous, the CWA does

not prohibit such an action. See Friends of Pinto Creek

v. U.S. E.P.A., 504 F.3d 1007, 1013 (9th Cir. 2007).

¶63 Because shaft 10 is a “new source” within the

meaning of 40 C.F.R. § 122.2, ADEQ may not renew

the permit until: (1) ADEQ finalizes a TMDL plan for

the receiving water segment; (2) Resolution

demonstrates the existence of sufficient copper load

allocations to allow for the proposed discharge; and (3)

Resolution demonstrates the existence of water

quality compliance schedules for the segment. See 40

C.F.R. § 122.4(i); Pinto Creek, 504 F.3d at 1012.

¶64 The CWA preserves and restores the integrity of

navigable waters by controlling both point and

nonpoint pollution sources. 33 U.S.C. § 1251(a)(7).

Point sources are discrete conveyances, including

pipes, ditches, or other outfalls. 33 U.S.C. § 1362(14).

“Nonpoint sources of pollution are non-discrete

sources,” such as agricultural runoff. Pinto Creek, 504

APP-60

F.3d at 1011. Section 303 of the CWA requires states

to identify waters not meeting applicable water

quality standards. 33 U.S.C. § 1313(d)(1)(A). In

Arizona, ADEQ prepares a list of those “impaired”

waters and indicates the pollutant(s) causing

impairment. A.R.S. § 49-232; see also 33 U.S.C. §

1313(d).

¶65 CWA section 303 also requires states to

determine the maximum amount of a given pollutant

an impaired water can absorb but still meet water

quality standards. 33 U.S.C. § 1313(d)(1)(C). Using

this determination, ADEQ develops TMDLs for

impaired waters. A.R.S. § 49-234.A. TMDLs are

informational tools establishing attainment targets

for pollutants, allocating discharge amounts, and

aiding with attainment planning. See 40 C.F.R. §§

130.2(e)–(i), 130.7(c); see also Pronsolino v. Nastri,

291 F.3d 1123, 1127–29 (9th Cir. 2002). TMDLs are

comprised

water's

waste

load

allocation *194 **685 (WLA) and its load allocation

(LA) plus a margin of safety. Overview of Total

Maximum Daily Loads, Envt'l Prot. Agency,

https://www.epa.gov/tmdl/overview-total-maximumdaily-loads-tmdls (last updated Aug. 31, 2022). WLAs

represent the sum-total pollutant allocations for all

point sources. In contrast, LAs are the sum total

allocations for nonpoint and background pollution. Id.

¶66 Special rules apply to permits authorizing a

discharge into impaired waters. 40 C.F.R. §

122.4(i); see also Pinto Creek, 504 F.3d at 1011.

Federal regulations broadly prohibit issuing a permit

to a new source proposing to discharge into impaired

waters. See 40 C.F.R. § 122.4(i); Pinto Creek, 504 F.3d

at 1012. This ban, however, is not absolute. Pinto

Creek, 504 F.3d at 1013. The relevant regulation

reads in part:

APP-61

No permit may be issued:

....

(i) To a new source or new discharger,

if the discharge from its construction or

operation will cause or contribute to the

violation of water quality standards. The

owner or operator of a new source or new

discharger proposing to discharge into a

water segment which does not meet

applicable water quality standards ...

and for which the State or interstate

agency has performed a pollutants load

allocation for the pollutant to be

discharged, must demonstrate, before

the close of the public comment period,

that:

(1) There are sufficient remaining

pollutant load allocations to allow for the

discharge; and

(2) The existing dischargers into that

segment are subject to compliance

schedules designed to bring the segment

into compliance with applicable water

quality standards.

40 C.F.R. § 122.4.

¶67 This court reviews administrative regulations

like statutes and interprets the regulations to further

the intent of the enabling legislation. Cooke v. Ariz.

Dep't of Econ. Sec., 232 Ariz. 141, 144, ¶ 13, 302 P.3d

666, 669 (App. 2013). The plain meaning of subsection

(i)’s first sentence lays out a default rule: no permit

may be issued to a new source causing or contributing

to a violation of water quality standards. Cf. State ex

rel. Winkleman v. Ariz. Navigable Stream

Adjudication Comm'n, 224 Ariz. 230, 240, ¶ 24, 229

APP-62

P.3d 242, 252 (App. 2010) (“We look to the plain

language ... because it is the best evidence of the

legislature's intent.”). Under this rule, it would be

nearly impossible for a new source to obtain a permit

to discharge into impaired waters. But, when reading

the regulation as a whole, the operator of a new source

has two clearly defined steps it may take to show it

will not “cause or contribute” to a violation of water

quality standards. Cf. Stambaugh v. Killian, 242

Ariz. 508, 509, ¶ 7, 398 P.3d 574, 575 (2017) (use

context to interpret words and provisions).

32¶68 The EPA has interpreted 40 C.F.R. § 122.4(i)(1)

and (2) to require a demonstration of sufficient

loading capacity in a segment's WLAs to

accommodate the new discharge in addition to the

existence of compliance schedules. In re: Carlota

Copper Co., 11 E.A.D. 692, 765, 2004 WL 3214473, at

*55 (EAB 2004). Stated more plainly, the party

seeking the permit must show: (1) the segment's

TMDL allocations can accommodate the proposed

additional point source; and (2) existing point sources

are subject to plans detailing the changes needed to

bring the segment into compliance. See Pinto Creek,

504 F.3d at 1012–15. Once the operator of a new

source establishes those two conditions, or if the

director of the permitting department determines the

department already has adequate information

establishing those two conditions, the new source will

not “cause or contribute” to continued water quality

violations. 40 C.F.R. § 122.4(i).

¶69 Here, the CWA lists the tributary of Queen

Creek—the proposed receiving water—as impaired

for copper. Because of this impairment, ADEQ must

finalize the TMDLs before issuing a permit for any

new source. ADEQ, thus, erred in not finalizing the

APP-63

TMDLs before renewing the permit. See 40 C.F.R. §

122.4(i); see also Pinto Creek, 504 F.3d at 1012.

*195 **686 ¶70 The parties devote most of their

briefings to whether shaft 10 is a new source.

Resolution, however, preserves one argument

pertinent to 40 C.F.R. § 122.4(i). Resolution contends

a discharge by itself “would not cause or contribute to

[the] impairment of Queen Creek.” In support,

Resolution points to Andy Koester, Manager of the

AZPDES Permit Unit, who testified Resolution would

not cause or contribute to a violation of water quality

standards if their discharges do not exceed the

limitations of the permit. Though this nascent

argument does not directly address 40 C.F.R. § 122.4,

it may suggest the federal regulation's prohibition

against permitting new sources does not apply. And

to the extent Koester's argument does, we disagree.

33¶71 This court gives meaning to every word and

provision in a regulation, rendering none

superfluous. See Garcia v. Butler, 251 Ariz. 191, 194,

¶ 12, 487 P.3d 256, 259 (2021). Koester's testimony

may be probative on whether the TMDL's load

allocation can accommodate the proposed discharge—

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