after harmful levels i see g s on authorized the money in pollution exceed state water quality standards that are set at levels necessary to protect wildlife but discharges violate kentucky state surface of the potential for selenium pollution kill to it not only from liability under the clean water act but also liability under the independent obligations imposed by its kentucky state surface mining program i  is wrong and i first explain how i see g s discharges violate kentucky's in forcible states surface mining standards then i'll discuss how they violate the clean water i see diesel in him discharges violate kentucky state surface mining standards that were promulgated pursuant to the federal smacker regardless of whether they also violate the clean water act and neither i c g nor any other party challenge those unambiguous requirements when they were approved by both the federal office of the surface mining and the us e p a as consistent with the clean water act i see g s x to those the surface mining selenium standard which agency issued that those standards those standards were promulgated there by the state of kentucky and pursuant to the federal smacker and those states is the same agency that of the state that deals with the clean water act as well this is a state environmental agency that deals with surface mining and deals with the clean water act as well they are within the same cabinet yes you are and the  agency that issued the standards was that department of natural resources i believe and the plain language of kentucky state standards which clearly require that a discharge or must at all times comply obligations independent from any requirements under the clean water act there is a saving clause maybe that's somewhat ambiguous that seems to say cording  to the defendants here seems to say that that i see g s reading of that savings cause would render completely meaningless the unambiguous portion of kentucky standards that require compliance with water quality standards now those performance standards the surface mining standards do not violate the savings cause for two primary reasons first the clean water act as well as the surface mining act clearly requires compliance with water quality standards the issuance of any permit is prohibited in less it can assure compliance with water quality standards now the clean water act seeks to ensure that compliance through the issuance of n p t s permits surface mining standards issue here merely provide an additional mechanism to ensure it over looks the fact that really the first thing we've got to figure out in this guys is the analytical why more that applies to it and more specifically whether we're going to interpreted the clean water act permit shield and section for a two k which is what the piney run case deals with and it's set out to separate interpretations one for individual permits and one for general permits which is that issue here when general permits are issued they are not they do not have the same detailed disclosures of the nature of the discharge and thus they're not as well able to develop effluent limitations to more the guidance is provided by e p a in one thousand nine hundred five memo where it says that the pollutants that are provided to shield under a general permit are only those within the specified scope  to the policy statement that was applied how do we know that the still thinks that that has anything whatever to do with this situation it's never said anything to the contrary your honor and that that's not a very strong a primitive evidence that the e p i thinks it has anything to do with this situation today does it there's there's nothing that would indicate that e p a has taken a different position now even under the reasonable contemplation the piney run standard that was adopted in catch you can poll a formal adjudication even under that standard that applies to individual permits the discharges at issue here would not be shielded at the time that the kentucky division of water issued the permit they had not considered a single point of selenium discharge data had never looked at at a discharge of selenium from a coal mine but they had they not i i know i can see that you can say well they hadn't cost them plated selenium discharge except with regard to these standards that they published for i guess by having but if they publish standards it's hard to say they didn't  contemplate selenium standards and you follow what i'm saying is a belief so you aren't in the kentucky division of water has had never at the time it issued the permit never reviewed organizations and the war division had not contemplated the selenium standards that were issued with regard to coal mines issued by another board or something right there i don't know agency in kentucky has ever in post so any i'm limits on any coma what about putting that aside in typing i think this time point to tamir was getting to the approaching in a little bit differently let's say we did read say that the panty run test was appropriate for this the two wifes and i know you disagree that that would be appropriate but let's say we did what would be a reasonable within places an additional requirements beyond simply what would be an actual contemplation there if you're right that they had to contemplate it and then as you are doing the contemplation had to be reasonable under the second part of the plan to run tests you seem to be saying reading at least reading between the lines that they actually had to study each and every potential pollutant coming out of a mine in order to satisfy the just out of curiosity in your experience how many potential contaminants are there from these mines in theory that is it tends is that hundreds of thousands there are many i can't say the number but there's a relatively limited number that have the potential to be discharged in harmful amounts and what piney might know so whatever that limited number is would we be all in the ballpark of we said dozens a dozen ok so to be reasonably kind of put it in your mind then they actually had to do a specific study of that dozen or so in order to then be able to say we reasonably contemplate it right  preserve what's the purpose of a general permit the general permit offers and it's kind of a quick and easy way to do these permits it does not allow the same consideration of the threats to the environment that a detailed application under an individual permit offers and thus the shield under a general permit is not as broad as that offered under an individual permit i c g easily could have sought an individual permit for its coal mine and indeed in most states all coal mine permits are issued as individual permits if it wished to obtain the broader shield available to individual permit fees it could have chosen that route it could have disclosed had it kentucky been concerned about the adverse impact of a general permit then they could have simply require them to get an individual permit when they got the notice that's correct with the continent they didn't do that if the notice dependent upon the permanent storage being able to judge the threat posed by the discharge discharge is not within the reasonable contemplation of the agency so you argue that the agency had to do the contemplation both at the time the general permit was issued and at the time that they notified the agency that they were going to use that general permit for a specific mine no we believe it would be at the time the general permit was issued and at that time the app said i'm not subsequently outset because i see g s mine was automatically reauthorized with the issuance of the general permit that constituted an issue as of a permit to i c t and at that time it was clear that the agency had not considered the potential for so many and pollution that would allow it to judge the threat posed to the environment and institute proper effluent limitations to control that threat now even if i see g s discharges or shielding have you everything there is not mentioned in the permit right everything is this considered part of come on in your honor there are circumstances one could imagine that might not be covered for example a worker showing up with paint thinner in the back of his pickup if it's not mentioned in the permit or any other pollutant and they would be protected by the general permit it's much as i hate to admit it in those terms yes your honor and that's exactly what he said back in  this interpretation i guess it is it is it says e t a s position is that general permits authorized the discharge of all pollutants within the specific quote specific scope of a particular general permit subject to limits notification requirements and other conditions now that's hard to interpret but the head whatever it m to it three different ways one can fit within the permit shields the third of those which is not discussed in piney run or any of the others the third is whether a pollutant is not identified in a permit application anyway but  stream operation or process identified in the permit process that is the definition of a general permit if you go to forty see a far one twenty two point twenty eight which defines what general permit is a gen subject to all pollutant limits right i believe it is or out of the pollutant limits are those which are actually effluent limits imposed in the general permit you're subject to those as well but to the extent there is not an  not have any thing in it that limits pollutants discharge then your submission is that they can discharge anything anything that they want to arsenic whatever there are limits in this general permit for some substances there are not limits in this general permit for someone so there are limits of subject to limits on the limits that are expressly set from within that set outside the permit that's the attitude or regulation i believe that's correct i'm i'm trying to figure out whether there's or there are temporal aspects of this as well if you're operating under a general i got it so i'm not suggesting that this is or is not good policy from the national or state standpoint but i'm just wondering whether the way in which discovery after mine is operated that the effluent has something that it exceeds certain limits when those limits are not expressed in the general permit then gets caught immediately or whether the whole system envisions that at the time of renewal if in the meantime this is what experience ha shown at that point the renewal then will condition the those effluent limits on in this case presumably this will be the subject of great debate on the renewal of the permit but let me say also that it does a sort of come down here to a fight between the sierra club and the mining industry as to whether that fight occurs as soon as the effluence are discovered or or at the time of the renewal is that really what we're talking about here in a sense but only for preexisting minds understand this particular general permit divides the world into mines which already existed that is places where water just falls and it's going to come off regardless but the lanes been disturbed and new expanded discharges for the existing discharges which is have in this case it requires a one time sample for thirteen different pollutants cluing sawney i'm but not at the outset of the permit for a new expanded discharge it does require a representative sampling at the outset and if there is a trigger they are the state can deal with it in that context so there is in this general permit a procedure to deal with nudist charges in a different way than for existing just too many many times as a general permit been issued to this particular coal mine this mine has been under the general permit since one thousand nine hundred ninety one and i don't know when the general permit was first issued in renewed but it's been renewed several times under the general permanent kentucky they didn't start testing for selenium until who started testing the mianus cell your honor in this case yes a long story been with the syria club on the obvious side of this for many years but see sawney him was generally not known to be present at the levels we find it to about ten years ago in central appalachia largely because the test methods used were probably not sensitive enough to pick it up at the levels are imposed but standards so slim was largely not known even though it was probably been there for many many decades what does that say a bad the reasonable contemplation issue if we were to apply the way we're going to if we were going to apply that test you think that the test that we should look at what evidence there is in the record that the kentucky agency actually no i don't think it's necessary d m i don't think it's necessarily the case but i don't think you have to worry about it here because it's clear the agency did contemplate the presence of someone in here well suppose we don't think it's sera club itself cited this u s g s report that the kentucky division of water relied on syria club in a separate petition to e p a said that that document could easily be used to predict water quality exceeding says for s which it doesn't exactly doesn't exactly fit as well here is does with an individual permit situation presume you decide if that's the best gadgets we've got when you get to the reasonable contemplation proc it seems to me that with a general permit the inquiry about contemplation might appropriately be a more general as inquiry and that you might focus a little more on what the agency would reasonably have contemplated than what it actually did in a particular case and it just seems to me i mean that's the language and it just seems to me that more general evidence arguably could surprise since i believe that's true iran is pretty much of the district court judge said i think well and that that might be why the district court sort of really didn't it obligated to find materials and submit them the third prong again of the e p a test not discussed in pine iran or in in re catch a can is if the pollutants not identified but as a constituent operation generally understood now that's reason the reason why contemplation in that context would be whether there was a general understanding of pollutants coming from a mine is a more general inquiry and the general permit doesn't dissipate that the agency will be take the lead in determining the scope of all of the things that might come off of the surface i realize that you don't like the concept of the two pipeline iran test applying to general permits but if we were to hold that it does and then we get to reasonable contemplation whatever that means the district judge never got to that so seems to me we have two choices we didn't make that determination ourselves as to what the agency did or did not reasonably contemplate or we remand it to let the district judge take a look at and then apply the second part of the test which do you advocate you know that's in that situation the club if i recall correctly advocated having this court decide that we did not take issue with that we said that this court probably could because it's a record review cases sensually but we did we didn't take a strong position that you couldn't or shouldn't remanded to the district court to make that determination there are stacks of things back there that require some looking at to reach that conclusion here that the syria club can somehow if there's no claim of the clean water act there is no claim of the clean water act they concede to enforce water quality standards that have not been reduced to an f lot limit they concede that in the breeze what they seek to do is to take a surface mining provision which adopts a clean water act standard that is water quality standards water quality standards are adopted under the clean water act not under smacker and they seek to enforce that water quality standard in a way that the clean water act doesn't permit because there's not an f a a limit here impose on sonic union doesn't permitted under the general permit we don't know what does not include water quality standards if that makes sense so there's smacker claim is they're trying to enforce the water quality standard of five parts per billion itself it's clear the clean water act will not allow them to do that they c de that they're trying to use macros a back door to do that they're trying to do it in a way that's fundamentally at odds with the clean water act now they make an argument that in addition to this conflict that the conflict doesn't exist where there is a state service money rule and i want to clarify i think there's a fairly easy way to explain this the claim they have brought under the citizen supervision of smack row says it's an action to enforce the federal surface mining act for the violation of a rule or permit issued pursuant to the federal surface mining act so for the purpose of this action the state rule surface money rule in which they rely is considered issued under the federal surface mining act and thereby subject to the provision in the service money act that you can't use that act to modify or supersede the clean water act there are between a rock issued pursuit the service money act and thereby subject to its restrictions or if it's not issued pursuant to service money act they never had a claim in the first place or it seems to me to be unrealistic to say that under the general permit you can have as much pollution as you want the mining company can have as much pollution as it wants to have or does it have a for a whole host of  would disagree i would believe that that's really a challenge to the general permit the way it was written and that's really the problem sirrah club has or they didn't challenge the way this general permit was renewed in two thousand and nine they could have done that permit the permit will be renewed in eight months presumably these issues will be addressed in that context so there isn't some mechanism set in place here to all rows but you can do it as long as the permit is in existence there necessarily true they have a remedy against the state agency they can suggest that the state agency has an obligation to impose limits on this permit they don't have a remedy directly against us for a violation of an affluent limit though that's true  locking i see g s council states that the general permit authorizes unlimited discharges of any pollutant not specifically limited in that general permit and as your honor stated that could include arsenic mercury so any i'm any of these believes we're not talking about whether this is a good idea or a bad idea we're talking about what are if any the limitations on citizen suit provisions it's not to say that this can't be regulated as the mind council indicated by the state now you may be unhappy with the extent of state regulation but we're talking about what we're the private right of action is our only yes your honor and that action is for any discharge that's not authorized by a perm so obviously congress sent to anticipated there would be some limitation on private rights of action or they wouldn't put in a permit shield and there would be a savings clause in smacker that is that correct would the savings and does not in any way reference the citizen supervision of america and indeed the savings so as well that it's what prevents your what your opposing counsel said was your backdoor attempt to win under that act if you can't win under the clean water act if you're in the state what the savings cost says is that nothing in the act the surface mining i should be interpreted as modifying or repealing the clean water act and as well as nine other different federal statutes concern obviously about some sort of unlimited discharges for a whole five years of arsenic insulin and other bad things there's it's not as if there's no environmental remedy here by somebody right it's just a question of whether you can enforce it yes you're on the clean water act authorizes so what's going on with the state in your view not deter not taking their own action if this is if this is such cataclysmic consequences as you suggest we've got the failure of the state agency and congress explicitly recognized that that was a potential and that's they stated in the legislative history of the clean water act that's why they included the citizens so when did you learn about the potential for solenn iyam discharges this organization has worked with so many and discharges in west virginia for a very long time more recently so why was there no discussion about this in the renewal in two thousand and nine and two thousand and nine you knew that the general permits would be had been issued without selema limitations you knew that it was up for renewal in two thousand and nine and you knew about salinity and i don't think there's anything in the record to show what sierra club knew or did not know in two thousand and nine and the record before the that you just said that maybe i misunderstood you in west virginia your honor they were very active on this issue now in what they had to go on was what the record before the agency when it issued the permit and when it issued the permit the agency had not looked at a single piece of selenium discharge data they didn't mention the word selenium in their response to comments they said e p a requires us to include a one time metals monitoring that's that's all they said there was no reason for sierra club or any other person to challenge the failure to include selenium limits because they did not believe that the solent the permit authorized the discharge issued or published the selenium chronic and acute standard those are standards that apply generally to water bodies and that was issued by the kentucky division of water the same the same agency that issued the general permit and now though that permit is enforced by the kentucky division of mining that also enforces the mining permits at issue here and those mining permits clearly require compliance not only with the effluent limitations issued under a clean water act permit but also with state water quality standards if the state ward or quality standards board or agency of the state issued selenium standards for chronic and acute selenium why how can we say that they didn't contemplate the i didn't contemplate the problem here those are issues not with any not with respect to any particular discharge or e p a sets recommended standards and then the state adopts that was does does does a reasonable contemplation me goose particular entity that is permitted or does it mean you know i'm a higher level of general awareness of this substance and good the notion that it should not exist in unlimited quantities in influence the general reasonable contemplation refers to the specific discharges that are being authorized the permit and so that is when we're talking about reasonable contemplation what was within the reasonable contemplation of the agency when they were issuing this permit for these specific discharges  and they're functioning in an individual permit setting that's what the i mean that's what the court and patty ronnie's talking about i mean if we if we followed that test in a general permit sitting it's natural to think that there would have to be some thought given to have the tests fit into this situation and the senate is just not very good when you get to this part of the well that's why  so is there anything else other than penny run which is an individual probate case that would tell us what to do but we think that the more limited scope should apply but if two general permits precisely because there authorizing discharges from facilities all over the state from a wide range and that would have a wider range of discharges now but going back to the fun following up on judge merits question you if the state has issued solenn iyam limitations and they clearly have and if you measure reasonable contemplation of the simming kind your own applies at the time the general permit is issued how can you say that the possible discharge of can wasn't contemplated when the state had specific limitations on the amount of a discharge you're out of the state has never placed a selenium limitation on it on a discharge from a coal mine it's never done that they haven't placed it in in a general permit nor in any individual permit what i question is whether they've placed it in it our question is whether they contemplated so here we know they knew about solenn him correct in general quality standards which apply generally to the water body and this is it we're talking water here so they knew about solenn iyam they knew it can occur in water and they did and they had dealt with it in state regulation so whether that's adequate or not is a whole different question but how can you say didn't know anything about this it wasn't reasonably contemplated what the reasonable contemplation refers to is whether they reasonably contemplated that the specific discharges that there authorizing in this case all those coal mines that would fall under the general permit would or would not discharge that pollutant and here there's nothing to show that they reasonably contemplate and so to do that they had to done a study of each potential pollutant back to where it was before or else if they didn't it wasn't a reason we can't believe that your bottom line isn't it that they must do something that would allow them to judge the threat posed to the environment as the four circuit said in piney run do they have to do that every fab years  they actually be although the permit says that it will be renewed every five years that hasn't been the case in the past and as the general permit guidance it's in the record shows that could the general permit need not be renewed so in fact this could authorize unlimited discharges of so many i'm mercury arsenic in perpetuity if the general permit isn't renewed how do they keep mine how do they keep surface money because under the administrative procedures act they state agency in kentucky simply pick up language from some e p a regulations or some other regulation somewhere and put it into the just copy them but is that what you're saying yes there was at the time the division of water issue the general permit there's no evidence in the record to show that they had ever looked at the discharge of so many of them didn't copy it from the a did they got it in they are they got it from somewhere so apparently they convert the right to the general water quality standards that apply to all water bodies an immediate chargers coal mine or not  oh is that significant because all the contemplation point that they simply copied it didn't do a study just put it in there or not it is certainly significant that they had never reviewed any selenium discharge data or any other someone iyam information with specific references to discharges from coal mines prior to issuing the general permit and the state standards the water quality standards are made in forcible