Did the Arizona Supreme Court err in its interpretation of new source performance standards for copper mine discharge permits by using a 'material connection' test instead of analyzing operational independence?

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. ii 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?