* The H onorable James S. Gw in, United States District Judge for the Northern District of Ohio, sitt ing by designati on. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

File Name: 04a03 47p.06 

### UNITED STATES COURTS OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

C ITIZENS C OAL C OU NCIL and KENTUCKY R ESOURCES C OU NCIL , I

NC ., Petitione rs,

v.

U NITED S TAT ES E NVIRON MENT AL P ROTECTI ON A GENCY , and M IKE L EAVI TT , in his capacity as Administrator of the E NVIRON MENT AL P ROTECTI ON A GENCY , Responde nt. X - - - -
> , - - - - - - N No. 02-3628

On Petition for Review of a Final Decision of the En vi ro nm en ta l P ro te ct io n A ge nc y. No. 40 CFR Parts 9 & 434. Argued: January

29, 2004
Decided and Filed: October 7, 2004

Before: SUHRHEI

NRICH and CL

AY, Circuit Judges; GWIN, District Judge. *

_________________ COUNSEL

ARGUED: Thomas J. FitzGerald, Frankfort, Kentucky , fo r Petitio ners. J. Steven Rogers, UNITED STATES DEPARTMENT OF JUSTICE, Washington , D.C., for Respondents. ON BRI EF: Tho masJ. FitzGerald, Frankfort, Kentucky , for Petitioners. Thomas H. Pacheco, UNITED STATES DEPARTMENT OF JUSTI CE, San Fr

ancisco , Califor

nia, for Responde

nts. GWIN, D. J., delivered the opinion of the court, in which CLAY, J., joined. SUH RHE IN RI CH, J. (pp. 15-1 8), deliv ered a s eparat e opinion c oncurri

ng in pa rt and dis senting

in part.

_________________ OPINION

_________________ JAMES S. GWIN, District Judge. Here, a Ke ntucky nonprofit corporation

(the Kentucky

Resources Council) and a na

tional orga nization that advocates clean-living conditions for residents of the nation’s coalfields (the Citizens Coal Council) petition this Court to invalidate a final rule that the Environmental

1No. 02-3628 Citizens Coal Council, et al. v. EPA Page 2

1 Pursuant

to Fed. R. App. P. 43(c)(2), the Court has subs tit

uted Mike Leavi tt f

or Chris tin e Whitman, who was sued in her official ca pac ity.

2 33 U .S.C. § 125 1, et s eq.

3 To illustrate the ridiculous number o f cross ref ere nces , c ons ide r the f

oll owi ng: CWA § 304(b )(4 )(B) (cod if iedat 33 U.S. C. § 1314(b )(4)(B)), refers r eaders to § 301(b)(2)(E ) (cod ifie d at 3 3 U .S.C. § 131 1(b )(2)(E )), which then refe rs read ers ba ck to § 304(a)(4) (codified at 33 U.S.C. § 131 4(a)(4)). Readers must fol low th is ci rc ui to us pat h t o di sc ove r m er el y t

ha t § 304 (b )( 4) (B) perta ins to “co nven tional p ollutants.”

4 33 U .S.C. § 125 1; se e al so B .P. Expl

ora ti on & Oil

v. EPA , 66 F.3d 784 , 789 (6th Cir. 1995).

5 See Nat . Res. Def

ens e Cou nci l v . EPA , 915 F.2d 131 4, 13 17 ( 9th Cir. 1990).

6 Tex as Oi l & Gas Ass’ n v. EPA , 161 F.3d 923 , 927 (5th Cir. 1998).

7 Na t. Res. D efens e Co unc il , 915 F.2d at 1317 (citi ng 33 U.S.C. §§ 1 312, 131 3).

8 Id. ProtectionAgency

promulgated on January

23, 2002 (“Final Rule”). 1 We refer to the Kentucky Resourc es Coun cil a nd the Citizens Coal Council collectively as “Petitioners” and the Environmenta l Protection Agency as “EPA.”

The Final Rule applies to once-abandoned coal mines that opera tors later reopen and

remi ne. In addition, the Fina

l Rule applies to coal mines in the arid regions of the Western interior states. Petitioners argue that the EPA’s Final Rule exceeds its statutory mandate and urge this Court to strike it down.

For the foll ow in g r ea so ns , w e i nv al id at e t he re gu la ti on s t he EP A p ro mu lg at ed in th e J an ua ry 2 3 , 2002 Final Rule, and remand.

BACKGROUND

The Clean Water Act (“CWA”) 2 is an enigmatical piece of leg islation. Filled with mor e sesquipedalian

jargon than a y

ear’s subs cription t

o any trade jo urnal an d a by zantine sy

stem of cr

oss refer ences, its intricacies are virtually indecipherable. 3 Perhaps t his explains

the part ies’ inab ility

to agree onseemingly a

ny aspect of the statute or

the EPA’s

Final Rule . What follows is our a ttempt to na

vigate this legislative laby

rinth and to translate its environmentalese into English:

The CWA seeks t

o restore and maintain the integrity of the nation’s water. 4 To further the goals of restoringand maintaining clean water, th e C WA in cl ud es bo th te ch no lo gy- dr iv en li mi ts an d w at er -q ua li tybased limits on pollution. 5 The technology -based limits aim to

prevent pollution by r

equiring polluters to install and implement various forms of technology designed to reduce the pollution disch arge d into the nation’s waters. 6 On the other hand, the water quality regulations kick in once a given body of water’s pollution level exc eeds the level tha t a st ate dee ms a cceptable for the body of water’s intended use or function. 7 They

endeav or to cur

e an aquatic tra

gedy of the commons wher e the aggreg ate impact of polluters ’ activities–despite c ompli ance wi th the tec

hnology -based r egulat ions–cau ses unac ceptabl e pollution. When this happens, the water-quality-based regulations ratchet up the pollution control required of individ ual pollute

rs. 8

The technology

-driven regula

ti ons are complex, and take the form of “effluent limitation guidelines

. ” An“effluent limitation” is “an y restriction [including schedules of compliance] established . . . on the quantitie s, rates, and concentrations of chemical, phy sical, biological, and other constituents which areNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 3

9 33 U.S.C. § 13 62(11).

10 Id . at § 13 62( 14)

.
11 For n ew so urces of po llution, a sim ilar system of regu lations a pplie s. See id. at § 131 6. Bec ause Peti ti oners do not direc tly challenge these “new source performance standards” (“NSPS”), discussing t heir regulat ions is beyond the scope of thi s opinion.

12 Id. at § 1 314 (b)(3 ).

13 Id. at § 1314(b)(1)(A ).

14 Id. at § 1 31 4(b)(2)(A). In th is particul ar subse ction, Congress us ed the t erm “best control measures and practi ces achie vab le.” From the re mainde r of the st atut e, i t appe ars that thi s prov isi on is meant to read “best

avai lable technology

eco nom ically ach ievab le”–o r at least m eans the same thing. B oth p arties’ br iefs reflect this in terpre tation.

15 Id. at § 1 314 (b)(4 )(A).

16 Id. at §§ 1314 (b)(1)(B); 1314(b )(2)(B); 1314(b)(4)(B ).

17 Id. at § 1 311 (b). D ischarg ers with point sources requiri ng best practicable control technology were to achieve the go als by July 1, 1 977

. Id. at § 1311(b)(1)(A ). M arch 3 1, 19 89 w as the ap plicab le date f or point sources requiring the bes t convent ional pollut ant contro l t echn olog y, id. at § 1 311 (b)(2 )(E) , and b est ava ilable tec hnolo gy eco nom ically ach ievab le, id . at §§ 1 311 (b)(2 )(C)– (D) , (F).

18 Id. at § 1 311 (b)(2 )(A).

19 Id. at § 1311(b)(2)(E ). discharged

from point sources into . . . water[].” 9 The CWA requires the EPA to issue effluent limitation guidelines for various type s of “point sources.” A “point source” is “any discern ible, confined an

d discrete conveya nce . . . [such as a pipe, ditch, or channel] from which pollutants are or may be

discharged.” 10 The EPA’s efflue

nt limitation guide lines are technolo gy-base d regulati ons. They requir e polluters to adopt certain technologies aimed at reduc ing pollution.

Section304 of the CWA charges the EPA with duties related to setting ef fluent limitation guidelines for existing sources of

pollution. 11 Under § 304(b)(3), the EPA must identify the specific control measures and practic es avail able to th e variou s categ ories an d classe s of point s ources. 12 Th e E PA mu st th en id en ti fy, interms of the amount of p ollutants, the pollution reduction (or, in Clean Water Act jargon, “eff luent reduction”) attainable through application of the three diffe r ent levels o f technology

–best practicable control techn ology (“BPT”), 13 be st available technology economically a

chievable (“BAT” ), 14 and best conventiona l pollutantcontrol technology (“BCT”). 15 It must also identify the factor s it will consider when deciding whichcontrol me asures a nd pract ices app ly to each of the various classes and categories of point sour

ces. 16
Beyond these §304 requirements, § 301 of the CWA requires that the effluent limitations attainab le by the various levels of technology “shall be achieved” by

various dates, all at least fifteen year s in the past. 17 More specifically, point sources discharging toxic and nonconventional pollutants must apply the best availab le technology

economic ally

achieva ble (“B AT”) to me et the BA T effluent li mitations. 18 Si mi la rl y, point sour

ces dischargin

g conve ntional po llutants mu st apply the best c onventio nal pollutant control te chnolog

y ( “BCT”)to meet the

BCT eff luent limita

tions. 19No. 02-3628 Citizens Coal Council, et al. v. EPA Page 4

20 See , e .g ., Am. Pa

per Ins t. , I nc. v. EPA, 996 F.2d 3 46, 350 (D .C. Cir. 1993).

21 33 U.S.C. § 13 11(a).

22 Id. at § 1342(a).

23 Und er the C W A, “disc harge ” refers to any a dditio n of an y polluta nt to nav igable wate rs f rom any poin t s ourc e. 33 U.S. C. § 13 62( 12) & (1 6). “D ischarg er” an d “po lluter” ar e there fore us ed inte rchan geab ly.

24 In addit ion to t

hese t echnology -based re gulat ions, the CWA also implement s water -quali ty- based regul ations . These l atte r regulations are based upon the desired uses and condi ti on of individual wat erways. The water-quali ty-based requirements were int ended by Congress to supplement the eff luent li mitations. Throug h the wat er qual ity standar ds, EPA may place addi tional oblig ations o n a po int sourc e to p reven t the wate r from falling be low ac cep table sta nda rds.

25 See 40 C .F.R. § 434

. 26 50 F ed. R eg. 41 296 (19 85)

. Theselimitations, however, are not self-executing. I nstead , t hey cre ate binding obligations on dischargers only throu gh National Po llutant Dis charg e Eliminat ion Sy stem (“N

PDES”) pe

rmits

. 20 The CW A forbids any

one from dischar ging a ny p ollutant without an N PDES permi

t. 21 The EPA Administrator may issue permits to

individua

l polluters only

if the pe rmit ted disch arges comply

with the requirements for effluent limitations

set out in § 301 of the CWA. 22 In issuing an NPDES permit, the EPA places the polluter into the appr

opriate point sour

ce cate gory

and subc ategor

y. T he EPA next assigns the appropriate level of techn ology to the polluter. Finally the EPA sets lim

its, for various pollutants, on how much the polluter may discharge. In se

tting the limits in indi

vidual pe rmits, the EPA imports

standar ds from th e effluent limitations guidelines issued under CWA § 304(b). EPA then applies the numeric limitations to the discharger 23 via the NPDES permit. 24 Thus, the te chnol ogy-based e fflue nt li mita tion s beco me bin ding o n pol luter s thro ugh NPDES per

mits.

To set the eff luent limita

tion guid elines un der CWA § 30 4(b), the

EPAbroke down the various point

sources by industry . The EPA established the Coal Mining Point Source Category as one of its industry categ ories. 25 In 1985, the EPA amended the effluent limitation guidelines and requirements concerning the Coal Mining Point Source Category by crea ting four subcategories. They were: 1) Coal Preparation Plants and Coal Preparation Plant Associated Areas 2) Acid o r Ferrugi nous M ine Dr ainage 3) Alkal ine Mi ne Drai nage 4) Post Mining

Areas. 26

Inseekingan NPDES pe

rmit, eac h coal min

ing ope ration wa s placed

into one of the se four s

ubcategories. From then on, whenever

a coal mining operation applied for an NPDES permit, the EPA incorporated the effluent limitation guidelines corresponding to the appropr iate subcategory

for that operation.

Under the 1985 regulations, these four subcateg ori es did not include a category for coal mining oper ations th at sought to remine previously mined, but later-abandoned, lands (“remining ope rations” or “reminers”). Technological ad v ances ma

de it fea sible and

potentia lly p rofitabl e to mine su

ch lands. However, the same regulations for miners of virgin lands applied also to coal reminers. Faced with a need to bring remining operations into compliance with the same standa rds used for first-time mining, potential reminers allowed abandoned mines to re ma in fallow, often with resulting untreated pollution from “preexisting discharges” that could othe rwise have been treated. By using the same standards for both theNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 5

27 33 U.S.C. § 13 11(p). 28 For the purpos es of

the Rahal l Amendme nt, a remi nin g opera ti on is one that commenced a ft er Febr uary 4, 198 7 at a site where coal mining had ceased before August 3, 1977. 33 U .S.C. § 1311(p)(3)(A). 29 In jurisdictions where E PA h as authori zed a s tate agency t o administer the NPDE S program, state agencies may i ssue NP DE S pe rmits. See 33 U.S.C. § 13 42(a)–(d). 30 33 U.S.C. § 13 11(p)(2). 31 40 C .F.R. § 434 .70( b) (2 004 ). 32 Id. at § 434.70(a). 33 Id. at § 4 34.7 2(a)

. mini ng of virgin land and the remining of abandoned mines, the re gulations imposed a large potential liability for any

one who took over the land encompassing the abandone d mines. Responding to the disincentive for r emini ng, C ongr ess p asse d sev eral

amendmen

ts to t he CWA in 1987, including one that

West Virginia Repr

esentat ive Nick R

ahall pr oposed. T

he “Raha ll Amendmen

t” became § 301(p) of CWA. 27

Withhis amendment, Rep. Rahall sought to stimulate the remining of abandoned coa l mine s by

exe mpting certa

in reminin

g oper ations fr om the othe

rwise-a pplicabl e nationa

l efflue nt limitations. 28 Rather thanrequiringremining operations to meet the national effluent limitation guidelines mandate d by the 1985 amendme nts, the Rahall Amendment allowed the NPDES permit writer (the EPA Administrator or a corresponding

state administrator) 29 to waive these requirements in favor of a modified permit. Under the Rahall Amendmen

t, modified p ermits incorporate site-specific numerical limits for pre-e xisting discharges of iron, manganese, and pH based upon the Administrator’ s “best professional judgment.” However, the Rahall Amen dment forbad e the EPA ( or state) Administra

tor to issue

a permit i f reminin

g would c ause discharges that exce eded the pre-exist ing leve ls of pollut

ants foun d in surround ing wat erway s. 30 The Rahall Amendment

also required that applicants for these “Rah all per mits” provide evidence that the remining operations would potentially improve the quality of the water in the ar ea, and that the p ermits comply

with applica ble state water qu ality standar ds.

The R ahall Amendment sought to make remining economically feasible. Congress believed that remining would improve the water quality of abandone d mines, an i mprovement that would not have occurred under the more stringe nt guidelines that applied to all mined lands.

EPA’S F INAL RULE The challenged EPA Final Rule creates two new

subcategories under the Coal Mining Point Source Category and sets re gu la ti on s f

or bo th . T he se ne w s ub ca te go ri es ar e ( 1) th e C oa l R em in in g S ub ca te go ry, and (2) the Western Alkaline Coal Mining Subcategory . We discuss them in turn. Coal Remining Subcategory

The Final Rule creates a first new subcategory known as the Coal Remini ng Subcateg ory. The regulations for this su

bcateg ory apply to all “pre-existing discharges” at “ coal remining operations.” “Preexisting discharges” are “a ny discharg e[s] resulting from mining activities that have been abandoned prior to the time

of a rem ining pe rmit application.” 31 A coal remining operation is “a coal mining operation at

a site on which coal mining was previously conducted and where the site has been aban doned or the performance bond has been forf eited.” 32

The regulations require that every r emining operator create a site- specific Pollution Abatement Plan and submit it to the EPA or the state a gency with authority to issue NPD ES permits

. 33 Remining operators must include in their Pollution Abatement Plans “best management practice s, ” and they must desig n theNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 6

34 Id. 35 Id. 36 Id. at § 4 34.7 2. 37 Id. at § 434. 73. 38 Id. at § 4 34.7 4. 39 Id. at 43 4.72 (b)(1 ). 40 See id at

§ 43 4 Ap p. B. 41 The Final Rul e provides s everal examples of when suchmeasurement would be in feasible: Pre-existi ng dis charg es f or whi ch i t i s i nfe asi ble t o coll ect sampl es f or dete rmin ati on of

baseli ne pollu tant

level s incl

ude, but are not limit ed to, discharges that exist as a diffuse gr oundwater flow that cannot be ass essed via sample collecti on;
a bas e f low to arec eiv in g st

rea m th at cann ot be moni tor ed s epar ate fr om th e re cei vi ng s tr eam; a dischar ge on a st eep
or haza rdo us slop e that is inaccessible for sam ple collection; or, a nu mber o f pre-existing discharges so extens ive t hat monitori ng of i ndivi dual dis charges is i nfeas ible. Id. at § 434.72(b)(2). 42 Id. at § 4 34.7 2(b )(2). 43 Id. at §§ 434. 72, 434. 73, & 434.74. 44 Id. at § 434.81. More speci fica lly , th e R ule’ s regul ations apply t o “alkal ine min e drainag e,” id. at § 4 34.8 1(a) , and to drainage wit

h (1) pH equal to or

great er tha n 6.0, ( 2) diss olved ir on concentr ation less than 10 mg/ L, and (3) n et al kali nity great er than ze ro, id. at § 4 34.8 1(b ). Further, the regulat ion applies only t o reclamation areas, brushi ng and grubbing areas, topsoil stockpiling ar eas, and regraded

areas

. Id. at § 434. 82. These dif fe ren t a rea s ar e al l de fi ned i n 40 C. F.R. § 434.80 ; the defi nitions ar e beyond the scope of our analysis. 45 Id. at § 434.80(f). 46 Id. at § 4 34.8 2(a)

. plans “to redu

ce the po llution loa

d from pr e-existin g discharg es[.]” 34 Further, each Pollution Abatement Plan “must descri be the design specifications, construction specific ations, ma

intenanc e schedu

les, crit eria for monitoring and inspection, and expected performance of [best management practices].” 3 5 Under the Final Rule, thes e Pollution Abateme nt Plans qua

lify as the be st practi cable c ontrol tec hnology curren tly availab le (BPT), 36 the best achievable technology economically a

chievable (BAT), 37 and the be st conventi onal pollu

tant cont rol tech nology (BCT) f or remini ng oper ators. 38

The Final Rule

also sets e ffluent l i mitations for four pollutants–total iron, total manganese, net

ac id it y, and total suspended solids (“TSS”). For each pollutant, the required e ffluent limitation is that the discharger

“[m]ay not excee d baseli ne lo adings[. ]” 39 Baseline loadings are bac kground conditions--i.e., those that exist when remining commences. The Final Rule defi nes the pr ocedure s for mea suring t

hem. 40 However, if the EPA

or the sta te permit ting aut hority conclude s that coll ecting

samples to

measure baseline pollutantloading s is infeasib le 41 and that remining “will result in significant improvement that would not otherwis e occur,” then

no me as ur ab le ef

fl ue nt li mi ta ti on s a pp ly. 42 The permitting authority apparently ha s unfettered

discretion in making such determinations. These reg ulations apply to all three leve ls of te ch no lo gy. 43
Western Alkaline Coal Mining Subcategory

The EPA’s Final Rule also creates, and establishes efflue nt limitations for, th e Western Alkaline Coal Mining Subcategory . The Final Rule re gulate s certa in ty pes of dr ainage incertain areas of “wester n coal mining operations.” 44 “Western coal mining operations” are “sur fac e or u nderground coal mining operati on[s] located in the interior western United States, west of the 100th meridian west longitude, in an arid or semiarid environment with an averag e annual precipitation of 26.0 inches or less.” 45

EPA’s Final Rule sets no uniform standards for drainage at western coal mining operations. I nstead, western alkaline coal mining operators must create “ a site-specific Sediment Control Plan . . . desig ned to prevent an incre ase in the average annual sediment y ield form pre-mined

undisturbed conditions.” 46 Like the Pollution Ab atement P lans desc ribed ab ove, ea

ch Sedime

nt Control P lan “must identify bestNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 7

47 Id. 48 Id. at § 434.82(b). 49 Id. at § 4 34.8 2(c)

. 50 Id. at § 434. 82. 51 Id. at § 434. 83. 52 Id. at § 434. 84. 53 5 U .S.C. § 551 , et seq

. 54 Id. at §§ 706(2)(A ), (C)–(D). 55 Mo tor V ehicle Mfrs. A ss’n v. S tate F arm Mu t. Auto Ins. C o., 463 U .S. 29, 43 (1983). 56 Tex as Oi l & Gas Ass’ n v. EPA , 161 F.3d 923 , 934 (5th Cir. 1998). 57 Citizen s to Pr eserv e O verto n P ark, In c. v. Vo lpe, 401 U .S. 402, 416 (197 1). 58 Mercy Hosp. of Laredo v. Heckler , 777 F.2d 102 8, 10 31 ( 5th Cir. 1985). 59 Chem. Mfr

s. Ass ’n v . EPA , 870 F.2d 177 , 198 (5th C ir. 198 9). management

practices (BMPs) and also must describe desig n specifications, cons tructio n specif ications, maintenance schedules, criteria fo r ins pection, as well a s expecte d perfor mance a nd longe vity of the be st
mana gemen tpractices.” 47 Sediment Control Plan s need no t include numeric al limitati ons on sed iment. Instead
, Operators must dem onstrate “[u]sing w atershe d models” that the Se diment Cont

rol Plans “

will

re sult in ave rage annual sediment y ields that will not be greater than the sediment yield levels from premined, undisturbed conditions.” 48 Beyond that, the operators’ only

obligat ion is to impl ement an

d maintain the best mana

gement practic es descr

ibed in the

Sediment Control Pl an. 49 T hese re quireme nts constit

ute BPT, 50 BAT, 51 and BCT. 52

STANDARDOF REVIEW

Petitioners challen

ge an EPA rule promulgated through informal rulema king. Therefore, we

review the Final Rule under the Administrative Procedure Act (“APA” )

. 53 Under the APA, we invalidate an informal ru le if

it is “a rb it ra ry, capric ious, an a buse of di scretion , or other wise not in

accord ance wi th law;” “in excess of statutory jur

isdict ion, authority, or limitations, or short of statutory right;” or “without observance of procedure r equired by law .” 54
An agency

rule is arbitrary

and capricious “if the agenc y has relied on f

actors which Congress has notintended

it to consid

er, enti rely failed to consider an importa

nt aspect of th e problem, offered an explanation for its decision that runs counter to the evi dence b efore t

he age ncy , or is so implausi

ble that it could not be ascribed to a difference in view or the product of agency

expertise.” 55 Further, an agency abuses its discretion when it fails to consider a factor the statute directs it to consider in promulgating regula tions. 56 The Courtmust undertake a “searching a nd careful review” to determine whe ther an agency action was arbitrary

and capricious, but “the ultimate standard of review is a na rrow one.” 57

This standard directs courts to grant substantial defer ence to administrative agencies. T he Court may notsubstitute its own judgment for that of the agency

. Instead, the Court must decide whether a rational relation ship exists between the statute’s purposes and the agency ’s action and whether “there is substantial evidence in the record to support it.” 58 Further, the agency ’s dec ision “is entitled to a presumption of regularity .” 59 With this standard in mind, we turn to Petitioners’ challenges to the Final Rule.

PARTIES’ ARGUMENTS

Petitioners attack the Final Rule on se veral f ronts. Regarding the Coal Remining Subcategory, they argue that it is inconsistent with CWA § 301(p), the Rahall Amendment. Petitioners claim four inconsiste ncies. First, they ar

gue that the definition of “coal remining ope ration” in the Final Rule differs fromthe Raha

ll Amendme

nt’s def inition of t

hat term. Second, Pe

titioners say , the Fina

l Rule adds total suspended

soli ds (“TSS”)to the list o f pollutan ts that ar e to rec eive re laxed standards. Whi le the RahallNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 8

60 See 67 Fed. Reg. 3371 (Jan. 23, 2002) (la beli ng CWA §§ 301 , 304 , 306 , 308 , 402 , 501 , and 5 02 a s EP A’s lega l autho rity for the Final Rule). Amendment

relaxes standards for only pH , manganese, and iron, the Final Rule includes TSS. Third, Petitioners argue that the Final Rule’s lack of numer ical limits on effluent s run s afoul of the Raha

ll Amendment’s requirement of numerical limits. Finally, Petitioners arg ue that the Final Rule differs from the Rahall Ame

ndment by

apply ing the o therwise -applic able sta ndards ( rather than modif

ied stand ards) to pre-existing discharges that reminers comming le with discharges from active mining oper ations. According to Petitioners, the EPA should regulate these discharge s under the r elaxed R ahall Ame ndment sta

ndards. For these reasons, Petitioners argue that the F inal Rule i s inconsis tent with the text, and also the purpose, of the Rahall Amend

ment. Concerningthe Western Alkaline Coal Mining Subcategory, the Petitioners offer four arguments for their challenge. First, they

argue that best manage

ment prac tic es are not appropriate effluent limitation guide lines because they

do not impose numeric limitations on pollution. Second, they argue t hat th e Administrator

has not shown that continued imposition of the currently a p pl icable e ffluent l imitations i s infeasible. Third, they arg ue that the entire subcategory

of Western Alkaline Coal Miners is irrational and overbroad. Fi nally , Petitione rs arg ue that th e EPA’s g oal in cr eating the subca

tegory is inconsis tent with the CWA and the Surface Mining Control & Reclamation Act (“SMCRA”).

The EPA defends the Final Rule, both subcat egor ies , an d i ts reg ul ati ons app li cab le t o t hem . In gener al, the EPA says that the Rahall Amendme nt does not c onstrain

the EPA’s

power to issue ge nerally applica ble regulations. Further, the EPA arg ues that requiring “best manage ment practices ” as th e only effluent limitations for the Coal Remining Subcategory is a reasonable exercise of the E PA’s discretion under the CWA. Finally, the EPA ar gues that we must affirm its rule applyingthe more strict, otherwiseapplica ble regula

ti ons (as o pposed to weakene d alternative re gulations) to com mingled waste str

eams because the EPA re lied on an

existing r

egulat ion in prom

ulgatin g it.

The EPA defends the Western Alkaline Coal Mining Subcategory with seve ral arg uments. First, it repeat s its arg

ument tha t non-nume

ric effluent limitations are acceptable under the CWA. Next, with regard to western

alkaline coal mine s, the EPA a

rgues t hat numer

ic limitations

are inf easible . The EPA

bases thi s argument upon its sc ientific

conclusi on that se dimentati on ponds c ause ser ious, adve rse non-wat

er-qua lity impactsin the arid West, and upon the assum

ption that u sing sed

imentation ponds isnecessary for a miner to comply with the numerical limitations. Third, the EPA argues that its scientific conclusions support the decisionto create the subcategory , and this decision was not arbitrary, c apricious, or un re as on ab le . F in al ly, the EPA argues that setting effluent limits at premined background levels is consistent with b oth th e CWA and the SMCRA.

ANALYSIS

We enter this analysis with ca ution. Most challenges to ad min istrative agency

action involve an agency ’s construction of a s ingle w ord or phr ase in its e

nablin g statute. I n contrast, we here examine an agency ’s construction of the statute (more or less) as a whole. I nstead of rely

ing upon a single section or subsectionof CWA as its authority to promulgate the F inal Rule, the EPA references no fewer than seven sections

. 60 In reviewing

the EPA’s Final Rule , we must therefor e look to e ach of these seven se ctions, a ll of their subsections, and all of the cross-refere nced sections within to determine the scop e of the EPA’s power.No. 02-3628 Citizens Coal Council, et al. v. EPA Page 9

61 467 U .S. 837 (1984 ). 62 Id. at 842. 63 Id. at 843. 64 For this reason, the EPA’s arguments that i t enacted the Final Rule in part to implement the Rahall Amendment are without merit. Th e Ra hall Amen dment authorizes EPA to mo dify t he effluent

limit ation guideli nes in indiv idua l perm its ; i t does not authori ze the EPA to is sue gener ally applicabl e rule s perta ini ng to coal remining. Any s uch rules and regulat ions must come under the E PA ’s gener al autho rity to issue e ffluent limitatio n guid elines un der C W A § 3 04( b). I. Coal Remining Subcategory

A.

We first decide whether CWA § 304 grants to the EPA the power to cr eate a subcategory

under the Coal Mining Poi

nt Source Category and to promulgate

regulations that conflict with the Rahall Amendment for that subcategory . The Petitioners argue that the CWA doe s not, and t

hat the F inal Rule

must be stricken downfor this reason. The EPA, however, co ntends tha t it had power to create reg ulations for remining under the CWA even w

here suc h regu lations conflict wit

h the Raha

ll Amendme

nt.

We review an

agency ’s construction

of its enabling statute under the two-step test articulated by the Supreme Court in Chevron, U.S.A. v. Natural Resourc es Defen

se Counci l. 61 First, we ask whet her Cong ress has spoken directly to the spec ific issue at hand. 62 If it has, we m

ust give effec t to Congr

ess’ cle arly expressed intent. However, if

the statut e is ambig

uous, we move to the second step, which calls for broad deferenceto the adm

inistrativ e age

ncy . In the second

step, we may invalida te an ag ency

action on

ly if it relies on an impermissible construction of the statute. 63
Applying the Chevron standard, we conclude that the CWA does not explicitly address whether the EPAhas the power to create a subcate gory under the Coal Mining Point Source Ca

tegory and to promulgate regulations for that subcategory that conflict with the Rahall Amendment. CWA § 304(b) provides the EPA with a general authority (indeed, a duty) to cre ate regulations (“effluent limitation guidelines” ) for various classes and categories of point source s. It doe s not addr ess the Ra hall Amen

dment’s r elationsh ip to these regula tions. Further, the Rahall Amendment is silent on the issue of the Administrator’s power to creat e additional subcategories under the Coal Mining Point Source Category. We must therefore move onto the second prong of Chevron –whether the agency ’s interpretation of the statute is reasonable.

Ge ne ra ll y, when an a

gency issues a r ule that cont

radicts t he enab ling sta

tute, the rule is “i nexcess of statutory jurisdiction,” and there fore violates the APA. This case pres ents an exception to that rule because the Raha

ll Amendme

nt does not

define or even li

mit the EPA’ s authori

t y to issue g eneral ly applica ble regulations. Instea

d, the Rahall Amendment merely provides a way

for coal reminers to opt out of gener ally applica ble eff luent limita

tion reg ulations a nd to obtai

n permits that include modified effluent limitations

. The Raha

ll Amendme

nt is wholly

silent re gardin

g the EPA ’s author

ity t o promulg ate implement

ing reg ulations that go be

yon d its provis ions. 64

CWA § 304(b) requires the EPA to issue effluent limitations for various pollutants and for various levels of techn

ology . CWA § 402(a

) furthe r direc ts the EPA

Administrator

to incorporate these regulations into NPDES permits issued to individual polluters. The Rahall Amendment gives reminers an alternative to the generally

applicable effluent limitation regulations. Under the Rahall Amendme nt, the Administrator (or ot he r N PD ES -p er mi t- is su in g a ut ho ri ty) may issue a modified permit. The Rahall Amendment thus does notcreate a partic ular re gulator

y sc heme tha t applies t o all coal rem ining ope

rations. On the contrary

, it creates an avenue for re

miners to opt out of the generally applicable regulations.

The Clean Wate

r Act’s t ext and stru

cture su pport this i

nte rpretation o f the

statu te. F irst, CWA § 304(b) di

rects the EPA to issue

gener ally applica ble guid elines. Se cond, the se guideli nes ga inthe force of lawthrough CWA § 301(b). Third, they create obligations on polluters through NPDES permits. TheNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 10

65 33 U .S.C. § 131 1(p )(1) (e mph asis ad ded ). 66 Petit ioners also ar gue tha t the Final Rule must be stricken down because its defi nition of “ remining operation” diff ers fr om that conta ined in the Ra hall Am end men t. Compa re 33 U.S.C. § 13 11(p)(3)(A) (defining a coal remining o perati on as “a c oal mining operat ion which b egins afte r Feb ruary 4 , 198 7, at a site on which coal mining was conducted before August 3, 1977”), with 40 C.F.R. § 434.70(a) (def ini ng a coa l re mini ng oper ati on as “ a coal mini ng oper ati on ata si te on which coal minin g was prev iously co nduc ted an d whe re the site h as be en ab and one d or the pe rform ance bon d has been forfeited ”). According to Peti tioner s, t his conf lict renders EPA’s acti on inconsi stent with the s tatute, and therefore inval id. Petiti oners
are mis tak en. The de fi ni ti ons cont ain ed wi th in th e Rah all Amendm ent

pert ain onl y t o th e Ra hall Amendm ent , a s CWA § 301(p)( 3) indicates by l imiti ng the reach of its definitions to the “purpo ses of this subsection[.]” 33 U.S.C . § 131 1(p)(3 ). Becau se EPA issued its Final R ule und er its § 3 04( b) au thority, it is not c onstra ined b y the de finitions that a pply only wit hin the context of CW A § 3 01( p). 67 5 U.S.C. § 706 (2)(D). 68 33 U .S.C. § 131 4(b )(3). 69 Id. at §§ 131 4(b )(1)(B ), 131 4(b )(2)(B ), & 1 314 (b)(4 )(B ). 70 Id. at § 1314(b)(1)(B ). 71 Id. at § 1314(b)(2)(B ). Raha ll Amend ment says that the Administrator “ may issue a pe

rmit . . . wh

ich modifi es the [g eneral ly applica ble effl uent limita tions ]” 65 for pre -exi stin g disch arge in various areas of a coal remining operation. Inno way

does the R

ahall Ame

ndment require

coal remining

operators to see

k such modi fied per

mits. Instead, remining

operators remai

n able to s eek per

mits under

the generally

applicable effluent limitation guidelines that the EPA promulgated under CWA § 304(b). Such permissive lan guage conflic ts with Petitioner s’ ar gu me nt th at th e R ah al l A me nd me nt cr ea te s a ge ne ra ll y applicable reg ulatory scheme, with whichEPA’s § 304(b) regulations must remain consistent. To the contrary , the § 304(b) regulations precede (both tempora lly a nd logic ally

) any applica tion of the

Rahall Ame

ndment. I

n these w ay s, the Rah all Amendment

does not create a gener

ally applicable sc

heme of regulating remining oper ators , binding on

all suchoperators. Instead, i t create s a way for remi ning ope rations to avoid the

gener ally applica ble EPA regulations issued under § 304(b).
Here, the EPA promulgated a rule that create d new generally applicab le regulations for coal r eminers. Theseregula

tions par allel the Rahall Ame ndment in s ome resp ects and run contr

ary to the Raha

ll Amendment in others. Because the text and structure of the Clean Water Act compel the conclusion that the Rahall Amendment is an opt-out, rather than a gener ally applica ble reg ulatory scheme, these inconsistencies with

the Rahall Amendment do not put the Final Rule in tension with the statute. Instead, the new Final Rule provides a new set of ge nerally applica

ble r egulations (ap plicable to all remining operators ), from w

hich rem ining ope rators a re still fr ee to opt outvia the Rahall Amendment’s alternative procedu res. 66

For these reasons, the EPA’s re ading o f the Clea n Water Ac

t, allowin g it to promulgate regulations for the Coal Remining Subcategory , is reasonable. Having concluded that the EPA ha s the authority to issue regulations of this type , we now turn to the validity of the individual re gulations.

B.

Even though the EPA’s conclusi on that it ma y is sue reg

ulations that diffe

r from the

Rahall Amendment

is rea sonab le, th e EPA’ s Coal Remi ning S ub ca te go ry regulations cannot stand because they are “without observance of proce dure required by law.” 67

The CWA contemplates a five-step process of creating and implementing effluent limitations. First, the EPA must identify which control measure s and practices are avai lab le to the various categories and classes of point sou rces. 68 Second , the EPA identifies the factors that it will take into account when decidingwhich of these control measures and practices apply to point sources within the various categories and classes

. 69 It must do so f or the three l evels of tech nolo gy described

in the statute–BPT, 70 BAT, 71 andNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 11

72 Id. at § 1 314 (b)(4 )(B ). 73 Id. at §§ 131 4(b )(1)(A ), 131 4(b )(2)(A ), & 1 314 (b)(4 )(A). 74 Id. at § 1 311 (b). 75 Id. at § 1 342 (a)(1 ). 76 Id. 77 Id. at § 1311(b)(2)(A ). 78 Id. at §§ 131 4(b )(1)(A ), 134 1(b )(2)(A ), & 1 314 (b)(4 )(A) ( both emp hases a dde d). 79 Cons id er , f

or e xam pl e, th e Ra hal l A men dmen t, whi ch a ll ows th e NPDES permit iss uer to mo dify the o therwise -app licable limit ations for cer tain co al rem iners. Id. at § 1311(p). Addit ionally, i f “f undamental ly di ffe rent f actors” a pply to a part icul ar disch arger , the Ad ministrato r may g rant a va riance on the basis o f those d ifference s. Id. at § 1311(n). 80 161 F.3d 923 , 937 -38 (5 th Cir. 19 98)

. BCT. 72 Third, the EPA must determine, “in terms of amounts of . . . polluta nts , the degree of efflue

nt reduction attainab le through the applica tion of” the three

technolo gical l evels. 73 These three steps each occur under CWA § 304(b). Fourth, these guidelines gain the force of law under CWA § 301(b), which states tha t compliance with the guidelines created under § 304 “sha ll be achieve d” by c ertain d ates. 74 Finally

, the EPA mu st incorpor ate the guideline limitation s into NPDES per mits give n to individ

ual pollute

rs. 75 At this step, compliance with the requi rem ents becomes mandatory for individual dischargers, as CWA § 402(a) establishes that c omplianc e with § 30 1 is a pre requisite to issuanc e of a pe

rmit. 76

Under the statute, the EPA should have first identified the tech nolo gical tools available to coal reminers an d then determined the amount of effluent reduction attainable. I nstead, the EPA started the regulation process by

defining the level of pollution the agency desired (maintaining

“baseline loadings”) and thenworked b ackwar

d to define the tec

hnologic al tools as

site-spe cific “p lans” tha

t would achieve the desired level of pollution. This is problematic not onl y be cause it is backwards–the EPA defines the pollution control technologies in terms of the desired outcome, ra ther than defining required outcomes in terms of that which the available technology can achieve–but more importantly because it shirks the EPA’s duty under CWA § 304(b) to

determine the deg

ree of e ffluent reduction attainable. Essentially, the EPA’s Final Rule defi

nes the a ttainable reduction atzero, without ever exploring the prospect of accomplishing

more.
Insome circumstances, such as when the levels of pollution have fa llen so low as to reach

fully the technologicalcontrols’ capabilities, the degree of e ffluent limitation at ta inable might actually be zero. However, setting

the attai nable ef fluent lim

itation at zero is ar

bitrary and capricious w

hen the EPA effec tively

defines the avai lable lev els of tec hnology as those t

h at will res ult in no increase of pollution, withoutany requir

ement that the limitations actually reduc e pollution. Such circular reasoning contravenes “the national goal of eliminating the discharg e of all pollutants” expressed in CWA § 3 01(b)(2) (A). 77 It further contravenes the EPA’s duties under CWA §§ 304(b)(1)(A), (b) (2)(A), and (b)(4)(A) to “determine

. . . the degree of efflue

nt reduction attainable ” for the various l evels of techn

ology, and to do

so “in ter ms of amounts of c onstitu ents.” 78 We hold tha t where t he EPA fa

ils to dete

rmine how

much red

uction in pollution is possible, and to do so by refer ence to the amounts

of polluta

nts, the EPA

deviates from CWA’s statutory commands

. The EPA’s decision to use background condition s as eff

luent limits

is also pro

blematic because it resultsin a diffe

rent ef fluent lim itation for each s i te. S uch a “keep it as it is” approach does not even approximate needed uniformity in the regula tions. While

th e C WA do es no t m an da te st ri ct un if or mi ty, 79
courts hav e re cog ni ze d t hat th e CW A di sal lo ws p lan t-b y-pl ant reg ul ati ons . In Texas Oil & Gas Assoc iation

v. EPA , the Fifth Cir

cuit held that the CWA does not require the EPA to maintain absolute uniformity a mong effluent limitati ons within a si

ngle ca tegory or subca tegory of point so

urces. 80 Howeve

r, the co urt also noted “the textual mandate of

the CWA that [effluent limitation guidelines] be established for ‘categoriesNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 12

81 Id. at 938. 82 Id. at 939. 83 W e reserve jud gment on the EP A’s argume nt that it is reasonab le to dub “b est management pr ac tices” as ef fluent limitations. The EP A sp ent a consider able porti on of it s brief making t

his ar gument, which bas ical ly par rots t he above-desc ribed argum ent that efflue nt limitation s need not be nume ric. We note, however, that the EPA’s own regulation renders thi s argument a red herring. The EP A lists best management practices in 40 C.F.R. § 434.72(a), which describes the control s constit uting t he best practicable t echnology (BPT ). However, § 434 .72(b)(1 )–the su bsection tha t sets out the applicable eff luent li mitations–contains nary a reference t o best management practices. Instead , subse ction (b )(1) lists the effluent limita ti on as “ May not exc eed ba sel in e l oadi ngs [. ]” 40 C.F. R. § 434.72 (b)(1). Further, while it ma y be p ermiss ible to estab lish best m anag eme nt prac tices as a n effluent lim itation, the C W A hints tha t this li mit ati on unacc omp anied by a nu meric guide line migh t run afo ul of the sta tute. CW A § 3 04( b) req uires the EP A to “p ublish . . . regulations, providing guidelines for effl uent limit ations.” 33 U.S.C. § 1314(b). T he statut e thus conte mpla tes that the E PA ’s guidel ines (and therefo re the regulations t hat contain t

hem) will contai n something beyond a mere recitation of t he effluent limit ations the EP A ha s cho sen. Fu rther, C W A § 3 04( e) pe rmits the EP A to p ublis h best management practices that are “supplemen tal to any eff luent limi tati ons.” Id. at § 1314(e). This provision strongly hi nts that the drafters of th e CW A envisi oned best management practices as being dif ferent f rom effluent l imitati ons, rather t han a type of eff

luent li mitation. 84 40 C.F. R. §§ 434. 72–434.75. 85 33 U .S.C. § 131 4(b )(1)(B ), (b)(2 )(B ), & (b )(4)(B ). 86 Id. at § 1314( b)(1) (B) & (b)( 4)(B). Subse cti on § 304(b) (2)( B) cont ains allof t he above , an d als o li sts “t he cos t of achieving such ef

fluent reduction” after “ process changes.” 33 U.S.C. § 131 4(b)(2)(B) 87 Tex as O il & Gas As s’ n v. EPA , 161 F.3d 92 3, 928 (5th Cir. 1998) (citing Nat . Res. Def ens e Cou nci l v . EPA , 863 F. 2d 1420, 14 26 (9th Cir. 1988))

. 88 Id. at 934 (holding that an agency abuses i ts discret ion when it i gnores a statut ory factor). 89 65 F ed. R eg. 19 440 (Ap r. 11, 2 000 ). 90 Id. at 19450- 51. and classes’ rather than individualpointsources,” 81 and “ag ree[d] tha t Congre ss intende d to fore close plantby-plant evaluation of fa cilities within a subcategory .” 82 The EPA’s decision to set effluent limitations throu gh sole reli ance up on site-sp ecific f actors th us runs af oul of this p olicy

agains t site-spe cific re gulations.
For the above reasons, we conclude that setting background conditions as effluent limitations violates the text of CWA and thus relies on an unreasonable reading of the statute. 83 Therefore, we strike down the

re gu la ti on s s et ti ng ef

fl ue nt li mi ta ti on s f

or th e C oa l R em in in g S ub ca te go ry. 84

C.

Anadditiona

l problem w

ith the EPA ’s Final

Rule lies in

the EPA’s

failure to consider

all the factors the CWA re quires it t

o conside r. Subsections 304(

b)(1)(B), (b) (2)(B) , and (b) (4)(B) require the EPA to consider a list of f actors w hen esta blishing which control mea sures sha ll become BPT, BAT, and

BCT. 85 These factors are

the age of equipment and facilitiesinvolved, the process employe d, the engine ering a spects of the application

of various types

of contr ol techni ques, pro cess cha nges, non-wate

r quality environmental impact (including energy require ments), and other such factors as the Administrator deems appropriate. 86

Alth ough the EPA has broad di scretion in determining the amount of weight to assig n to each factor, 87 it may not ignore

a factor altogether. 88

The record in this case provides no evidence that the EP A took eachof these factors into account when prescribing the pollution control measures that became pa rt of the various t

echnolog ical leve ls for the two new subcategories. The EPA’s Proposed Rule 89 goes so

far as to list the fa ctors in it s discussion of BPT for th e C oa l R em in in g S ub ca te go ry, 90 ye t it contai ns no evide

nce that the EPA ac

tually consider ed them. For instance, the Proposed Rule contains no discussion or even information on the age of the e quipmentandNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 13

91 See id . at

19452. 92 See 67 Fed. Reg. 33 70–34 10 (Jan. 23, 2002 ). 93 40 C.F.R. § 434 .71(b). 94 40 C .F.R. § 43 4.61 states: W here wast e st

reams fr om any f

acil ity cove red by thi s par t ar e combin ed for treatment or di sch arg e wi th was te st rea ms from another facil ity covered by thi s part, t he concentration of each pollut ant in the combined disch arge may n ot exceed the most str ingent

limi tati ons for t

hat pollutant

applicabl e to anycomponent wast e str eam of th e discha rge. Th is provision is not specific t o the Coal Remining Subcategory; it appli es to all s ubcategories in t he Coal M ining Point Source Cate gory. 95 Id. at §4 34.8 2(a)

. facilities or of “t he engi neer ing aspects of the application of various ty pes of control techniques.” The discussions of BCT , BAT, a nd NSPS do not

even list t

he fact ors. 91 The Final Rule fares no better. 92
Therefore, fromthe rec ord before us, we cannot c onclude t

hat the EPA

followed Congre ss’ statutory directives in determining the a ppropriate pollution controls to assign to point sources in the new subcate gories

. For this reason, we must further strike down the EPA’s dec ision to set Pollution Abatement Plans featuring best management pra ctices as BPT, BCT, and BAT for the Coa l Remining Subcategory

. D.

The final issue we decide with regard to the Coal Remining Subcategory is whether the EPA may apply differe nt standa rds to pre- exi sting discharges that have bee n commingled with wastes from active mining operations. Under t he Final Rule, the EPA applies a lower standard for c leanup of pre-existing disch arge at remini

ng oper ations. However, for pre-existing discharg e that became intertwined with wastes fromactive mi

ning ope rations, the higher stand

ard appl icable to

waste fr om act ive mining operations applies. 93 Petitioners challenge this regulation as too demanding . The EPA defends its decision to apply alternative standards to waste streams that hav e be en commingled by arguing that it merely

applied an existing regulation to the new context of coal reminers. Petitioners argue that the Rahall Amendment prohibits theEPA fromapplying the stricter standards of the generally

applicable § 304(b) regulations to pre-existing discharges that have commingled with other wastestreams. As described previously , t his argument is incorrect. Aga in, the Rahall Amendment functions only as an opt- out, not as

a ma nd at or y, generally

applicable regulatory

scheme. The Rahall Amendment therefore does not prohibit the EPA fromapplying its g eneral comming ling rul e 94 to commingling of preexisting discharges. Nor does any other provision of the CWA so prohibit. For these reasons, we grant the EPAthe deference due to it in construing its own reg ulations, and conclude that the EPA may ap ply its commingling rule to pre-existing discharg es. II. Western Alkaline Coal Mining Subcategory

Petitioners also mount several arguments against the second new subcategory

created by

the Final Rule--the We st er n A lk al in e C oa l M in in g S ub ca te go ry. First, they repe at their argument that the EPA lacks authority to impose non-numeric effluent limitation g

uideline s. Next, they say

that even if the EPA had such

au th or it y, the decision to do so here was arbitr ary , capric ious, and i

nconsiste nt with the

goalsof the

CWA and the SMCRA.

The regulations for the Western Alkaline Coal Mining Subca tegory conta in no numer

ic effluent limitations for total suspended solids, and no effluent limitations at all for settleable solids and pH. Under the regulations, each operator “ must submit a site-specific Sediment Control Plan . . . designed to prevent
anincrea se in the a

verag e annua

l sediment

yie ld from pr

e-mined , undistur

bed cond it ions .” 95 Like the Pollution Abatement

Plans appl icable to

the Coal Remining Subcategory , these Sediment Control Plans areNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 14

96 Id. 97 Id. at § 434.82(b). 98 See id. at § 4 34.8 2 (B PT ); § 43 4.83 (BA T) ; § 43 4.84 (BC T)

. to feature best mana

gement practic es. 96 Additiona

lly, operators must dem

onstrate the plans ’ effe ctivene ss “[u]sing water shed models.” 97 These Sediment Control Plans constitute the only effluent limitation require d for al l t hr ee le ve ls of

te ch no lo gy, 98 and they conta in no numeric limits on sediment whatsoever. Bey ond the initia l models the

re are no measur

able che cks on sed

iment leve ls at all.

The same r ea so ni ng de ta il ed ab ov e i n P ar ts I.B . a nd I.C . a pp li es eq ua ll y to the non-numeri c limitations in the Western Alkaline Coal Mining Subcategory . By adopting non-numeric effluent limitat ions based upon backgroun

d conditions, the EPA

shirked i ts duties un

der CWA § 30 4(b) to de

termine i n terms of the amounts of pollutants, the degreeof ef fl ue nt re du ct io n a tt ai na bl e b y th e v ar io us le ve ls of te ch no lo gy. Ad di ti on al ly, the EPA abused its discretion by fa iling to cons i der t

he fa ctor s spe lled o

ut in C WA §§ 304(b)(1)(B), (b)(2)(B), and (b)(4)( B) when deciding which

control measures would become BPT, BAT, and BCT. For these reasons, we strike down the re gulations implementing the Western Alkaline Coal Mi ni ng Su bc at eg or y.
CONCLUSION For the reasons described above, we invalidate the regulations contained in the EPA’s Final Rule. We theref

ore REMAN

D this matte

r to the EPA

with instru

ctions to e ither with

draw the Final Rule

or to issue a new rule, and to ensure that the provisions of which are consistent with this opinion.No. 02-3628 Citizens Coal Council, et al. v. EPA Page 15

_____________________________________________ CONCURRING IN PART, DISSENTING IN P ART

_____________________________________________ SUHRHEINRI CH, Circuit Judge, concurring in part, and dissenting in part. I concur in Part I .A. of the majority opinion. I

agree that

the EPA has rea sonably

interpre ted the Cle an Water

Act with r

espect t o its author ity t o regu late. The opt out mea sures al lowed by the Raha ll Amendme

nt do not limi

t the EPA’s auth ority to create and regulate

subcategories such as the Coal Remining Subcategory and the Western Alkaline Coal Mining Subcategory

. The majority neverthe less strikes down the regulations that the EPA promulgated for the se new subcate gories

. The majority holds that these reg ulations were not made in observance of procedure required by law bec ause the EPA failed to follow the steps set forth in the Act. See supra Part I .B. The

majority also holds that the EPA did not weigh the required statutory factors prior to regulating as it did. See supra

Part I.C. The majority applies these holdings to the regulations for both subcateg ories. See supra Part II

. I wr

ite separa tely because I disa gree w ith the maj ority ’s analy

sis on thes e points.

As to the majority’s holding that these regulations wer e not made in observance of procedure required by l aw beca

use the EPA failed to followthe “steps” set forth in the Act, I must note that Petitioners did not even argue that these reg ulations were not made in observance of proce dure required by law, much less that the EPA failed

to follow the steps created by the majority. Petitioners have ar gued only that the regulations are arbitrary

and capricious. See Brie

f of Petitio ners , pp. 21, 23, 51, 53-54, 63, 65; Reply Brief of Petition ers , pp. 24, 27, 29.

Inany event, I fail to see any st atuto ry language requiring the EPA to follow a five-step process whe n promulgating

effluent limitation guidelines, much less to take the steps in the order c ont emplated by the

ma jo ri ty. There is

no seque ntial lang uage in these pr ovisions, i .e., wor

ds su ch as “first,” “then,” “next,” “before,” or

“after.” This statu

te merel y r equires the EPA to d

o certa in things when promulgatin

g these particu lar gui delines.

The majority neverthe less would require the EPA to promulgate effluent limitation guidelines under 33 U.S.C. § 1314(b) in a constrained, step-wise fashion starting with subsection (b)(3). Then the EPA wo

uld have to meet sub sections (b)(1) (B), (b )(2)(B ), and (b )(4)(B ). Next, the EPA would have to pr

oceed to

mee ting subsecti ons (b)( 1)(A), ( b)(2)( A), and ( B)(4)( A). Afte r that, it would need

to meet the

ti me-line s under the introd

uctory parag raph of s ubsection (b), an

d finally would be r

equired to issue pe

rmits in accord with 33 U.S.C. § 134 2(a)(1 ). Need less to say , these f

ive steps are not e ven in the order in which the

statute is drafted. I see

no lang uage f rom which

one could

even inf er that Congress

intended the EPA to s tart in the middle of subsection (b) whenever it promulgated g uidelines fo r effluent

limitations. Moreover, the majority’sfifth ste

p is found only

ina separate provision that subsection (b) does not even re ferenc e. Thus, the maj o rity creat es a ser ies of steps the EP A must follo w that appear s nowh ere in t he sta tuto ry language and which are not

even urged on us by

the Petitioner as a

reason f or strikin g down these reg

ulations.

More problema

tic, howe ver, is that the majority then uses this artificial ser ies of steps to chastise the EPAfor engaging

in what the majority

views as c ircular

reasoni ng. Be cause the majorit

y believes that the technologicaltools must be assessed first and then the EPA must determine the amount of effluent reduction attainab le with

those technologies, it finds impermissible the EPA’s decision to define baseline loadings that

can then be a ddresse d with BMPs

. The major ity’ s approa

ch, howe ver, see ms to requ

ire the EPA to work in a vacu um, without consideration of the ultimate goal. If the majority must create

steps, it would seem muchmore logical for

the EPA to f

irst establish a goal c onsistent w

ith the fra mework e nacted by Congress inthe Clean Water Act, and then determine the means by which

it can be best ach ieved, a s the EPA appare ntly did here once it was clear that the existing effluent limitations were not producing positive results when applied to the narrow problem of remining.No. 02-3628 Citizens Coal Council, et al. v. EPA Page 16

Here, the EPA was addressing very spec ific problems associated with remining. It recog nized that the prior regulations made no distinction between previously mined lands and virg in lands, thereby re quiring both to meet the same standar d of cleanliness. Be cause the costs a ssociate d with brin ging the previo

usly mined lands into

complia n ce with those regulations were prohibitive, those eff luent limitation guidelines

were not effective in reducing acid mine

drainag e from a

bandone d mine lands because operators would not remine the area . While experience after the Rahall Amendment showed that remining under modified permits was succ essful in i mproving the acid mine drainage, many

miners remained hesitant to obtain the modified permits without further EPA action. Had the EPA done nothing, i n light of this proble

m, it would nothave been acting to fulfill the mandate of Cong ress “to restore and maintain the chemical, phy sical, and biological integrity

of the Nation’s waters.” 33 U.S.C. §1251.

Inmy review of

the record, the baseline loadings wer e set in respon se to the negative experiences associated

with the adoption of the various appropriate technologies. The EPA recognized

that although the technologies theoretic

ally could have resulted in a degree of efflue nt reduc tion at abandoned mines, they would fail to do so whenever the land was not remined. In other words, whe re miners would not remine, it seems the degree of reduc tion actually

attainable at abandoned mines would be zero. The b as eline loading s, therefore, were

no t s et “b ef

or e” co ns id er in g t he te ch no lo gy, as the ma jority sugge sts, but after it became clear that the tec

hnologic al guide lines cou ld not be su

ccessf ul. In short, the “failure” of the EPA to follow the five-step process created by the majority simply

is nota basis on which these regulations can be struck down.

The majority

also holds

that the EPA did

not weigh the required

statutory factors prior to regulating as it did. In particular, the majority finds no evidence that the EPA considered any information about the age of the equipment and facilities, or of the engineering aspects of

the application of the various ty pes of control techniques for BPT, BAT, BCT and NSPS. As before, Petitioners did not mak e this arg ument. B ut, even if they did, I

think the majority misunderstands the EPA’s Final Rule.

Inits Final Rule, the EPA explains that it adopts BMP for BAT becau se s uch abatement plans “should, in most

cases, achieve reductions below baseline disc harge levels.” 67 Fed. Reg. 3379 (Jan. 23, 2002). It goes on to explain that it adopted B MPs for BA T because “there are no more stringent technologies that are economically fe asible.” Id. at 3380. F or the sa me reas on, it appl ied the B MP to BCT and BPT. Id. Congre ss has authorized BMPs to supplement effluent limitations. 33 U.S.C. § 1314(e). The EPA has defined BMPs as “schedules of activities, prohibitions of practices, ma intenance procedures, and other management

pra ctices to prev ent or reduce the polluti on of ‘wa ters of the United S tates.’” 20 C.F.R. § 122.2 (July 1, 2003) (emphasis added). BMPs cons ist of “tr eatment r equirements, operati

ng proc edures, and practi ces to contr ol pl ant si te run off, s pill age or leaks , sludge or waste disposal, or drainage from raw material storage.” Id. The EPA has provided that BMPs are p ermissible condi tions in NPD ES permits when “[n]umeric effluent limitations are infeasible.” 20 C.F.R. § 122.44(k)(3).
BPTs, on the othe

r hand, c onsist of “

technolo gy

” that ca n att ain “a degre e of effluent reduction,” 33 U.S.C. § 131 4(b)(1) (A), as d o BATs, 3 3 U.S.C. § 13 14(b)(2 )(A), a nd BCTs, 33 U.S.C. § 1314(b)(4)(A). For those instance s where

the EPA finds that discharges can be reduc ed or eliminated during remining by certain practic es without

the need to resor t to technologies, the very technologies which would not be used because the land would not

be remined, it would seem that adoption of BMPs as the guideline would satisfy the statute be cause

they supplement the ef

fluent limitations. Accordingly, the re would be no need for

the EPAto reconsider all the factors required in for mulating BAT, BPT, and BCT in the first instance. See 33 U.S.C. §§ 1314(b)(1)(B), 1314(b)(2)(B ), 1314(b)(4)(B).

Inany eve nt, the record is replete with documents reflecting that the EPA engaged in considera tions of costs and other required

factors, especially

non-water-quality

environmental impacts. To the extent that the EPA may not have conside red age of equipmen

t and fac ilities or e

nginee ring as pects, I am by

no meansNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 17

convinced

that it cou

ld have c onsidere d such fa ctors be cause ( 1) BMPs g eneral ly c onsist of things that are not equipmen

t or fac ilities, (2 ) they

likely do not hav e engineering

aspects , and (3) these regulations were made in light of existing regulations. An example

of a BMP i

ncludes t he activ ity of applying

lime. 67 Fed. Reg. at 3377. Other B MPs
are regrading

and revegetation, diversion ditches, allowing limited or no augur mining, and var ious types of channels, drains and

wells. Coal Remi ning Best Managemen t Practices Guidance Manu al, EPA 821 -B01-010, pp. 22-24 (December 2001) ( available

at http://epa.gov/waterscience/guide/c oal/bmp/last visited July 28, 2004) (a supporting document incorporated by reference into the reg

ulations, 67 Fed. Reg. at

3371). Alth ough thes e B MP s m ay r equire use of equipment, a backhoe for e xample, they are not in and of themselves equipment, much less facilities. Instead, they are often how land around the mines is changed and managed. And, to the extent that a BMP might involve use of an augur or other

piece of equipmen

t, it is not the age of the augur that is rele vant, but whether and to what extent it can be used a t all. Thus
, there is no “age” for the EPA to consider.
Likewise, I

am not persuaded that there are eng ineering aspects for the EPA to consider g iven the nature of BMPs. For example, what aspect of en gi ne er in g w ou ld be in vo lv ed in re ve ge ta ti on ? Si mi la rl y, what aspect of engineering

is involved

inprohibiting or limiting a practice, like augur mining? I submit that th er e a re n’ t a ny. Moreover, as discussed previously, these r egu lations were promulgated because the existing regulations were not producing thedesired results in the narr ow instanc es of aba

ndoned mines that c ould be remin ed. There is no allegation by Petitioners that the E PA failed in the first instance to consider the required factors. In short, the EPA should not be faulted f or not reconsidering

factors that simply are

not relevant in the narrow

context of

the subca tegori es at issue . Accor

dingly , I c annot ag

ree with the majority’s conclusionthat the Ru

le must be held inval id

for fail ure to consider a

ll the stat utory factor s. If the majorit

y thinks the rec ord is in sufficie nt, it would

be bette r to rema nd the mat

ter to the EPA, with a

request to suppleme nt the re cord, tha

n to strike down the Rule. In any event, the EPA’s regulations, viewed in light of the unique

problem it

was try ing to correct in the narrow context of remining, see m eminently reasona

ble, and certainly

are not arbitrary

or capricious.

Before conclu ding, I pause he re to address Petitioner’s argument pertaining to the Rule’s lack of numerical limits. Althoug h whispers of it

can be found in a careful rea ding of the opinion, the majority doe s not openly

address it.

W e must alwa

ys start with

the statut ory text and pr

esume tha

t Congre ss “say

s in a statu

te what it

me ans and me ans in a statute what it says.” Connecticut Nat’l Ban k v. Ger main , 503 U.S. 249, 253-254 (1992). It is clear that Congre ss knows how to specify that it requir es “nume rical” l imitations w

hen that i s what it wants to

convey because Congre ss requir

ed the EPA

to set “sp ecific n

umerica l efflue nt limitations” in33 U.S.C. § 1311(p). That provision, however, does not require generally applicable effluent limitation guidelines to have specific numerical limitations. In dire cting that generally applicable effluent limitation guidelines be promul gated, Congre ss did not r equire “nume rical” limitations. See 33 U.S.C. § 1314(b). Instead, Congre ss specif

ied that the EPA id e nt if

y “ amounts

of constituents and chemical, phy sical, and biological characteristics of pollutants.” Id.

The word “a

mount” is d

efined n ot only as a quantity, number

or sum, but also as “the whole or final effec t, significance, or import.” Webster’ s Third Ne w Int ernational Dicti onary

72 (unabridged

1971); see also American Heritage Dictionar y 103 (2d colleg e ed. 1982) (de fining the w ord “amounts” as “[t]he aggr egate effec t or mean

ing; import”); B lack’s L

aw Dictionary

83 (6th ed. 1990) ( defini ng “amount” as “[t]he whole effect, substance, quantity, import, result, or significance”). I ndeed , th e term “amounts” asNo. 02-3628 Citizens Coal Council, et al. v. EPA Page 18

1 One spec ific requi rement chal leng ed by Pet it ioner s i s t hat under 40 C.F.R. § 434.82. a BM P “will resul t in average annual sediment yiel ds that w ill not be greate r than the sedim ent yield le vels from prem ined, u ndisturb ed co ndition s.” See Brie f o f Petitio ner’s at 62 . Althou gh this stan dard is not num eric in the sense th at it requ ires a sed iment q uantity of X , it certainly is a stand ard tha t requir es asse ssmen ts of a qu antity and com pariso ns of tha t quan tity to a anot her predet ermined quan tity. Thus , it is akin t o a formul a that refl ects a

resul t, or

a number in

the cont ext of

a resul t sough t, or

the i mport of t

he number as c ompared to a stan dard . The refore , it satisfies the de finition of a n “am ount.” used in § 304 could denote Congress’s intent that the EPA set effluent limitation guidelines in terms of the ef fe ct , s ub st an ce , i mp or t, or ef fe ct of a p ol lu ta nt , n ot ju st it s s he er qu an ti ty. 1

Such a conclu sion is buttr

essed by other sta tutory langua ge. For example, Co ngress defined “eff luent l imitation” as “ anyrestriction established by a State or the Administrator on quantities, ra te, an d concentrations of chemical, phy sical, biological, and other constituents which are dischar ged from point

sources into navig able wa ters, the waters o f the con

tiguou s zone, or the ocean, including schedules of compliance .” 33 U.S. C. § 1362(1 1) (emphases add ed). Mor eover, C ongre ss also pr

ovided tha

t Whenever, in the judgment of the Administrator, discharges of pollutants from a point sourc e or group of p oint so urces, with the application of effluent limitations required under (s 301(b) of the Act), would interfere with the attainment or maintenance of that wate r quality ina specif

ic portion of the na vigable waters w hich shal l assu

re prote ction of public water supplies, agricultural and industrial uses, and the protection and propagation of

a balanced po pulation of shellf

ish, fish a

nd wildlif

e, and a llow recreational activi

ties in and on th e water, effluent limitations (including alternative effluent control strategies ) for such point

source or sources shall be established which can reasona bly be expect ed to cont ribute to the at ta in me nt or ma in te na nc e o f s uc h w at er qu al it y.
33 U.S.C. § 1312(a). In fact, this Court has previously noted in dicta that

“Congr ess did not

regar d numeric effluent limitations

as the onl y pe rmissible limitation on a discharger.” Natural Re sources D efense Co uncil, Inc. v. Costle , 568 F.2d

1369, 1380 n.21 (6th 1977) (citing 33 U.S.C. § 1312(a)). These statutory provisions thus further counsel against limiting the definition of “amounts” to an expression of numerical limitations

as th es e s ta tu te s e nc om pa ss an y res triction, including compliance schedules, and contemplate alter native strategies that “ca

n reasonably

be expect ed to cont ribute to th e a tt ai nm en t o r m ai nt en an ce of ” w at er qu al it y. In sum, I would hold that § 304 does not evince that Congre ss has “di

rectly spoken” that the EPA should set numeric eff

l uent limitation guidelines. Chevron U .S.A., In c. v. Natu ral Resour ces Defe nse Council, Inc. , 467 U.S. 837, 842-43 (1984) (noting that when Congress has “direc tly spoken” on an issue

a reviewing court “mus t

give ef fect to the unambig

uously expresse d intent of

Congre ss”). B ecause

Congre ss did not unambiguously re quire the EPA to set numeric effluent limitation guide lines, EPA’s regulations should not be invalidated on this basis.

Fi na ll y, Petitioner’s remaining claims, that were not addressed by the ma jo ri ty, are without merit. Moreover, I would affirm the reg ulations because the EPA’s construction o f the statute is reasonable and therefore permissible.

In s um , f or th e r ea so ns di sc us se d, I wo ul d a ff ir m t he se re gu la ti on s i n t he ir en ti re ty.