Citizens Coal Council and KRC Challenge EPA Rule Relaxing Sediment Controls On Mining

 

_________________________________________

CITIZENS COAL COUNCIL and )

KENTUCKY RESOURCES COUNCIL, INC. )

)

Petitioners, ) Case No. 02-3628

)

V. )

)

ENVIRONMENTAL PROTECTION AGENCY, )

and CHRISTINE T. WHITMAN, in her capacity )

as Administrator of the ENVIRONMENTAL )

PROTECTION AGENCY, )

)

___________Respondents. ______________ _____)

 

 

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

 

Pursuant to 6^th Circuit Rule 25, the Kentucky Resources Council, Inc. makes the following disclosure:

1. The Kentucky Resources Council is not a subsidiary or affiliate of a publicly owned corporation.

2. There is no publicly owned corporation, not a party to the appeal that has a financial interest in the outcome.

 

________________________ November 15, 2002

Counsel for Petitioner

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

 

__________________________________________

CITIZENS COAL COUNCIL and )

KENTUCKY RESOURCES COUNCIL, INC. )

)

Petitioners, ) Case No. 02-3628

)

V. )

)

ENVIRONMENTAL PROTECTION AGENCY, )

and CHRISTINE T. WHITMAN, in her capacity )

as Administrator of the ENVIRONMENTAL )

PROTECTION AGENCY, )

)

___________Respondents. ___________________)

 

 

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

 

Pursuant to 6^th Circuit Rule 25, the Citizens Coal Council makes the following disclosure:

1. The Citizens Coal Council is not a subsidiary or affiliate of a publicly owned corporation.

2. There is no publicly owned corporation, not a party to the appeal that has a financial interest in the outcome.

 

________________________ November 15, 2002

Counsel for Petitioner

 

 

TABLE OF CONTENTS

 

CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . .ii-iii

 

TABLE OF CONTENTS . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .iv-vi

 

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi-xi

 

STATEMENT IN SUPPORT OF ORAL ARGUMENT . . . . . . . . . . . xii

 

STATEMENT OF SUBJECT MATTER AND

APPELLATE JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

 

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. . . . .. 2

 

STATUTES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . .3

 

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

 

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-18

 

A. Statutory and Regulatory Background . . . . . . . . . . . . . . . . . . . . 4-5

 

B. Background on "Rahall Amendment" . . . . . . . . . . . . . . . . . . . . . .5-10

 

C. Background On "Western Alkaline Coal Mining Subcategory" .10-16

 

D. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16-18

 

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18-21

 

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21-65

 

I. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-24

 

II. THE ADOPTION OF THE REMINING SUBCATEGORY

EFFLUENT LIMITATIONS VIOLATES STEP ONE OF

THE CHEVRON STANDARD IN SEVERAL RESPECTS . . 24-44

 

A. THE ADMINISTRATOR IGNORED THE LANGUAGE

AND INTENT OF SECTION 301(P) BY DEFINING

"COAL REMINING OPERATION" TO INCLUDE SITES

MINED AFTER AUGUST 3, 1977 . . . . . . . . . . . . . . . . . . ..26-30

 

B. THE ADMINISTRATOR HAS IGNORED THE

LANGUAGE AND INTENT OF SECTION 301(P) BY

ALLOWING MODIFIED EFFLUENT LIMITS FOR

TOTAL SUSPENDED SOLIDS . . . . . . . . . . . . . . . . . . . . . 30-32

 

C. THE ADMINISTRATIOR HAS IGNORED THE LANGUAGE

AND INTENT OF SECTION 301(P) BY ALLOWING RE-

MINING OPERATIONS TO RECEIVE PERMITS THAT

LACK NUMERICAL EFFLUENT LIMITATIONS FOR

IRON, MANGANESE AND pH . . . . . . . . . . . . . . . . . . . . .32-39

 

D. THE ADMINISTRATOR HAS IGNORED THE LAN-

GUAGE AND INTENT OF RAHALL AMENDMENT BY REQUIRING ENCOUNTERED AND COMMINGLED PREEXISTING DISCHARGES TO BE TREATED TO CATEGORICAL STANDARDS AND BY REQUIRING

TREATMENT OF DIVERTED DISCHARGES . . . . . . . . 39-44

 

1. The Administrator Has Misread and Misapplied The

Rahall Amendment And Has Ignored The Intent Of The

Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-44

 

III. THE ADMINISTRATOR HAS DISREGARDED THE PLAIN

LANGUAGE OF THE CWA IN CREATING A NEW

SUBCATEGORY OF WESTERN ALKALINE COAL MINING

AND ELIMINATING EFFLUENT LIMITATIONS FOR THAT

SUBCATEGORY; AND HAS FAILED TO PROVIDE A

REASONED JUSTIFICATION FOR ELIMINATION OF

EFFLUENT LIMITATIONS FOR THAT SUBCATEGORY OF

MINING OPERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44-65

 

A. THE ADMINISTRATOR LACKS THE AUTHORITY TO

ELIMINATE EFFLUENT LIMITATIONS IN LIEU OF

APPLICATION OF BEST MANAGEMENT PRACTICES. . 46-47

 

B. TO THE EXTENT THAT THE ADMINISTRATOR CAN

AVOID IMPOSING EFFLUENT LIMITATIONS, THE

ADMINISTATOR HAS FAILED TO DEMONSTRATE THAT

CONTINUED IMPOSITION OF THE CURRENT EFFLUENT

LIMITATIONS FOR SETTLEABLE SOLIDS AND Ph ARE

"INFEASIBLE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48-51

 

C. THE "WESTERN ALKALINE MINING SUBCATEGORY"

IS AN IRRATIONAL AND OVERBROAD CATEGORIZA-

TION INTENDED TO ACHIEVE A GOAL INCONSISTENT

WITH THE CWA AND SMCRA . . . . . . . . . . . . . . . . . . . . . . .51-65

 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

 

ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . .

 

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF AUTHORITIES

 

CASES Page(s)

 

American Petroleum Institute v. EPA, 52 F.3d 1113

(D.C. Cir. 1995) . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 27-8,32

 

BP Exploration and Oil, Inc., v. U.S. E.P.A.,

66 F.3d 784 (6^th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 21

 

Cajun Electric Power Cooperative v. FERC, 924 F.2d 1132

(D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 22

 

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21, passim

 

Good Samaritan Hospital v. Shalala, 508 U.S. 402,

124 L.Ed. 2d 368, 113 S.Ct. 2151 (1993). . . . . . . . . . . . . . . . . . . . . . . . 22

 

GTE Midwest, Inc. v. F.C.C., 233 F.3d 341 (6^th Cir. 2000) . . . . . . . . . 21-3

Independent Community Bankers Of America v. Board Of Governors

Of The Federal Reserve System, 195 F.3d 28 (D.C. Cir. 1999) . . . . . . . 27

 

Motor Vehicle Mfrs. Assn. v. State Farm Mut. Ins. Co.,

463 U.S. 29 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,51,53-4,63-4

 

National Mining Assn. v. U. S. Dept. of the Interior, 105 F.3d 691

(D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,27

 

National Truck Equipment Association v. National Highway Traffic

Safety Administration, 972 F.2d 669 (6^th Cir. 1992). . . . . . . . . . . . . . . .23

 

Natural Resources Defense Council, Inc. v. Reilly, 976 F.2d 36

(D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

 

Qwest Communications Intl. v. FCC, 229 F.3d 1172 (D.C. Cir. 2000). .

 

Royal Geropsychiatric Services, Inc. v. Tompkins, et al., 159 F.3d 238

(6^th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..22

 

Sierra Club v. EPA, 719 F.2d 436 (D.C. Cir. 1983)

cert. denied , 468 U.S. 1204, 82 L.Ed.2d 870, 104 S.Ct. 3571 (1984) . . . .28

 

Wall v. U.S. E.P.A., 265 F.3d. 426 (6^th Cir. 2001). . . . . . . . . . . . . . . . . 21,23

STATUTES RULES AND REGULATIONS

 

5 U.S.C. 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16,21,23,49,53-4,63

 

Clean Water Act (CWA):

 

Section 101, 33 U.S.C. 1251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 301(b)(2), 33 U.S.C. 1311(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . .47

Section 301(p), 33 U.S.C. 1311(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim.

 

Section 301(p)(1), 33 U.S.C. 1311(p)(1). . . . . . . . . . . . . . . . . . . . .7,33,41-2

 

Section 301(p)(2), 33 U.S.C. 1311(p)(2). . . . . . . . . . . . . . . . . . . . . . . . 7 ,29

Section 301(p)(3)(A), 33 U.S.C. 1311(p)(3)(A) . . . . . . . . . . . . . . . . 6,26,29

Section 301(p)(3) (B), 33 U.S.C. 1311(p)(3)(B) . . . . . . . . . . . . . . . . . . . . 29

Section 301(p)(4), 33 U.S.C. 1311(p)(4). . . . . . . . . . . . . . . . . . . . . . . .7, 31

Section 304(b), 33 U.S.C. 1314(b) . . . . . . . . . . . 20,27-8,31,35,38,46-7,56

Section 304(b)(1)(A), 33 U.S.C. 1314(b)(1)(A). . . . . . . . . . . . . . . . . . . . 47

Section 304(e), 33 U.S.C. 1314(e) . . . . . . . . . . . . . . . . . . . . 11, 20,35-6,46-7

 

Section 401, 33 U.S.C. 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

 

Section 402, 33 U.S.C. 1342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3,5

 

Section 402(l)(2), 33 U.S.C. 1342(l)2). . . . . . . . . . . . . . . . . . . . . . . . .19,44

 

Section 402(p),33 U.S.C. 1342(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

 

Section 502, 33 U.S.C. 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33-4,47

 

Section 502(11), 33 U.S.C. 1361(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

 

Section 509(b), 33 U.S.C. Section 1369(b) . . . . . . . . . . . . . . . . . . . . . . . . 1,4

 

Section 509(b)(1),33 U.S.C. 1369(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

 

Surface Mining Control and Reclamation Act of 1977 (SMCRA):

Section 101, 30 U.S.C. 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 404; 30 U.S.C. 1234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 29

Section 515, 30 U.S.C. 1265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

 

Section 515(b)(10), 30 U.S.C. 1265(b)(10) . . . . . . . . . . . . . . . . . . . . . .57-9

 

CFR

 

40 CFR 23.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

 

40 CFR 122.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

40 CFR 122.44(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34,48-9

40 CFR Part 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

40 CFR. 434.71(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

40 CFR 434.82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

40 CFR 434.83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

RULES

 

Federal Rule of Appellate Procedure 15 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

 

FEDERAL REGISTER

 

42 Federal Register 21,330 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,13

 

42 Federal Register 21,380 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

44 Federal Register 2,586 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,13

46 Federal Register 3,141 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 46 Federal Register 3,142-5 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14

46 Federal Register 3,157 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

47 Federal Register 45,382 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 15 47 Federal Register 45,387 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47 Federal Register 47,219 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59

50 Federal Register 41,296 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 12,16

50 Federal Register 41,305 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

67 Federal Register 3,370 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

 

67 Federal Register 3,373 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

67 Federal Register 3,378 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . .34,40-1

 

67 Federal Register 3,379 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38,63

 

67 Federal Register 3,380 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

 

67 Federal Register 3,381 (2002) . . . . . . . . . . . . . . . . . . . . . . .46,49,50,53,55

 

67 Federal Register 3,384 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

 

67 Federal Register 3,390 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

 

67 Federal Register 3,403 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

 

67 Federal Register 3,404 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54,55

 

OTHER AUTHORITIES

 

Water Quality Renewal Act of 1984 (H.R. 3282) (1984) . . . . . . . . . .8,9,38

H.R. Report 95-218, 95^th Congress, 1^st Session (1977) . . . . . . . . . . . . .59-60

H.R. Report 98-827 (June 6, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

S. Report 95-128, 95^th Congress, 1^st Session (1977) . . . . . . . . . . . . . . . . 57

 

130 Cong. Rec. H6909 (June 26, 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

 

131 Cong. Rec. H6025-03 (July 23, 1985) . . . . . . . . . . . . . . . . . . . . . . . . .42

 

131 Cong. Rec. H6038-9 (July 23, 1985) . . . . . . . . . . . . . . . . 9,29-30,36,42

132 Cong. Rec. H10934-5 (October 15, 1986) . . . . . . . . . . . . . . . . . . . . .9,10

133 Cong. Rec. H186-7 (January 8, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . .9

133 Cong. Rec. H137 (January 7, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATEMENT IN SUPPORT OF ORAL ARGUMENT

 

Petitioner requests oral argument, and believes that it would be of assistance to the Court in the resolution of this appeal.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

 

This Court has jurisdiction over this appeal pursuant to the Clean Water Act (CWA) Section 509(b), 33 U.S.C. Section 1369(b), which authorizes direct judicial review of a final rulemaking action by the Administrator for the U.S. Environmental Protection Agency (Administrator) under the Clean Water Act. The final rule challenged herein was published in the Federal Register on January 23, 2002 and is "considered promulgated for purposes of judicial review at 1 p.m. Eastern Standard Time on February 6, 2002." 67 Federal Register (Fed.Reg.) 3370 (January 23, 2002). CWA Section 509(b)(1) provides that a petition for review be filed within 120 days from the date of promulgation. 33 U.S.C. 1369(b)(1). This petition was filed on June 5, 2002.¹ Joint Appendix (JA)___.

The petition for review is proper in this Circuit, in accordance with CWA Section 509(b)(1), 33 U.S.C. 1369(b)(1), which directs that review may be had by application to the Circuit Court of Appeals for the Federal judicial district in which a person directly affected by the action resides or transacts business.

 

 

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

 

1. Does the EPA coal remining rule impermissibly expand those sites eligible for modified pollutant limits beyond those authorized by Congress in Section 301(p) of the Water Quality Act of 1987?

2. Does the EPA coal remining rule impermissibly expand the pollutants eligible for modified limits beyond those authorized by Congress in Section 301(p) of the Water Quality Act of 1987?

3. Is the EPA coal remining rule inconsistent with Section 301(p) in allowing modified permits to be issued without alternate specific numerical limits on pH, iron and manganese?

4. Is the EPA coal remining rule inconsistent with Section 301(p) in allowing modified permits to be issued without any alternate effluent limitations?

5. Is the EPA coal remining rule inconsistent with Section 301(p) in allowing modified permits to be issued without a determination of the pollutant loading from pre-existing discharges from previously-mined areas?

6. Is the EPA coal remining rule inconsistent with Section 301(p) in requiring the pre-existing discharges that are intercepted or commingled for treatment by a coal remining operation be treated to the categorical effluent standards.

7. Is the requirement to permit and apply best management practices to pre-existing discharges that are diverted around the remining operation inconsistent with CWA Sections 301(p) and 402?

8. Does the establishment by EPA of a "western alkaline coal mining subcategory" for which effluent limitations are eliminated in lieu of application of best management practices, violate the CWA?

9. Has the Administrator acted arbitrarily, capriciously and inconsistently with Section 304(b) in supplanting numerical effluent limits representing best available technology for sediment reduction with unenforceable, unmeasurable best management practices?

STATUTES AND REGULATIONS

The statutes and regulations appear in an addendum at the end of this brief. Legislative and regulatory history cited in the brief is included in the Joint Appendix.

STATEMENT OF THE CASE

Kentucky Resources Council, Inc. (KRC) and Citizens Coal Council (CCC) filed this Petition for Review challenging the Administrator's final rulemaking at 67 Fed.Reg. 3370 (January 23, 2002) amending the existing effluent limitations guidelines and new source performance standards for the coal mining point source category at 40 Code of Federal Regulation (CFR) Part 434, to add two new subcategories to the existing regulation. The final rulemaking exposes KRC and CCC's members who live, work, and recreate in areas directly affected by current and abandoned, pre-1977 coal mining operations, to the likelihood that remining of those areas will not occur as intended by Congress; and the probability that where it does occur, enforceable protections against degradation of water quality will not be imposed. CCC has members who are also directly affected in their use and enjoyment of the land and water resources of areas affected by mining areas that would be eligible for relaxed responsibility from sediment control from reclamation areas under the new "western alkaline mine subcategory".

CCC and KRC participated in the administrative proceedings in which the Administrator proposed and then adopted the challenged regulation. This appeal arises under CWA Section 509(b), 33 U.S.C. 1369(b) and challenges the final rulemaking of the Administrator of the U.S. Environmental Protection Agency under the Clean Water Act.

STATEMENT OF THE FACTS

A. Statutory And Regulatory Background

The objective of the Clean Water Act (CWA) "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. 1251. Under Section 301(a) of the CWA the discharge of any pollutant by any person is unlawful, except in compliance with the CWA. The CWA directs EPA to "formulate national effluent limitation guidelines for those entities that discharge pollutants into the navigable waters of the United States," BP Exploration and Oil, Inc., v. U.S. E.P.A., 66 F.3d 784, 789 (6^th Cir. 1995), and directed EPA to institute "progressively more stringent effluent discharge guidelines in stages". Id. Those effluent limitations are enforced through permits issued under the National Pollutant Discharge Elimination System (NPDES) under Section 402 of the CWA.

EPA adopted national effluent limitation guidelines regulating concentrations of iron, manganese, suspended solids, settleable solids, and the pH of wastewaters discharged from coal mining operations, beginning with "best practicable control technology" (BPT) limitations for existing sources on April 26,1977, 42 Fed.Reg. 21380 (1977), New Source Performance Standards (NSPS) for new coal mining sources on January 12, 1979, 44 Fed.Reg. 2586 (1979), and amendments to those standards on October 13, 1982, 47 Fed.Reg. 45382 (1982) and again on October 9, 1985. 50 Fed.Reg. 41296 (1985).

B. Background On "Rahall Amendment"

As part of the Water Quality Act of 1987, Congress adopted a provision allowing a modification to the categorical effluent limitations for pH, iron and manganese, otherwise applicable to surface coal mining operations, for "coal remining operations." To provide an incentive for remining and reclaiming abandoned mine lands that pre-dated the passage of the Surface Mining Control and Reclamation Act (SMCRA) of 1977, the amendment to include Section 301(p) provided that the categorical best available technology (BAT) limits for iron, manganese and pH, found at 40 CFR. Part 434, could be modified for pre-existing discharges affected by remining, through application of site-specific BAT limits determined on a case-by-case basis.

Congress defined a "coal remining operation" as one commencing after February 4, 1987 at a site where coal mining was conducted before August 3, 1977. Section 301(p)(3)(A); 33 U.S.C. 1311(p)(3)(A). The Rahall Amendment, named after the sponsor of the amendment Representative Nick Rahall of West Virginia, allowed the Administrator or a state with an approved NPDES permitting program to issue a discharge permit which modified the categorical coal mining effluent limitations for pH, iron and manganese with respect to any "pre-existing discharges" from the remined area of any remining operation or affected by the remining operation. Where such a modified requirement was allowed, best available technology economically achievable (BAT) was to be determined on a case-by-case basis, using the permit writer's best professional judgment (BPJ), "to set specific numerical effluent limitations in each permit." CWA Section 301(p)(1); 33 U.S.C. 1311(p)(1). Additionally, a permit containing modified requirements for pH, iron or manganese could be issued only where the applicant demonstrated that the coal remining operation will result in the potential for improved water quality from the remining operation, and in no event could a permit be issued where the pollutant concentrations in the discharge would exceed the discharges from the remined area before the coal remining operation began. CWA Section 301(p)(2); 33 U.S.C. 1311(p)(2).

As a backstop to protect waterbodies receiving drainage from the remining sites, Congress further provided that in no case could a discharge under the modified coal remining permit exceed the state water quality standards for the receiving waters. CWA Section 301(p)(2); 33 U.S.C. 1311(p)(2). Finally, Congress made clear that nothing in the coal remining provision was intended to "affect the application of the Surface Mining Control and Reclamation Act of 1977 to any coal remining operation, including the application of such Act to suspended solids." CWA Section 301(p)(4); 33 U.S.C. 1311(p)(4).

The August 3, 1977 date used by Congress to delineate those sites eligible for the "coal remining operation" effluent limit modifications was chosen because it was the date that Congress enacted the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., creating a regulatory program applicable to all surface coal mining operations conducted after that date, and a program for reclamation of "abandoned mine lands", defined as those sites mined prior to August 3, 1977 and left in an unreclaimed status and for which no legal responsibility existed under state or federal law. SMCRA Section 404; 30 U.S.C. 1234.

The legislative history to the 1987 Rahall Amendment spans three Congresses. During the second session of the 98^th Congress in 1984, the House considered legislation to reauthorize the Clean Water Act (H.R. 3282). Included in the committee amendments to that bill was the coal remining amendment that later passed in 1987.

As first introduced and referred, the Water Quality Renewal Act of 1984 proposed to create a new subsection (n) to Section 301 of the Clean Water Act exempting pre-existing discharges from abandoned pre-SMCRA coal mine operations from the application of the effluent limitations for coal mining operations.² The proposal to allow a remining operation to avoid responsibility for treating pre-existing discharges drew fire from some quarters.

The Rahall Amendment was the product of a negotiated compromise, introduced as part of a block of amendments to the 1984 bill, and described at the time by Representative Rahall in this manner:

The provision of H.R. 3282 as reported, which is being

substituted today, while well-intended, was subject to

misinterpretation by several interest groups. The new

language for this provision, however, has been agreed to

by all those with an interest in this issue.

 

130 Cong. Rec. H6909 (June 26, 1984).

 

The amendment described by Representative Rahall and introduced in 1984 was substantially the same language as was codified into Section 301(p) in 1987. Id. H6909-6911.³ When the House-Senate Conference Report on the Senate-passed version of H.R. 8 was considered in the House on October 15, 1986, Rep. Rahall again took the floor to support the conference report and to again address the legislative history and the genesis of the amendment:

As the author of this coal remining provision, I would note

that a rather detailed legislative history has been established

to assist in its implementation. In this regard, interested

parties should refer to the Congressional Record of July 23, 1985, at

which time I provided a full explanation of the provision during

the debate on H.R. 8, the House-passed version of S.1128, as

well as to the colloquy between the chairman of the committee

with jurisdiction over the Surface Mining Control And Reclamation

Act of 1977, Morris Udall, and myself conducted during the last

Congress, which can be found in the Record of June 26, 1984,

when a similar version of this provision passed the House as part of

H.R. 3282.

 

This coal remining provision is the product of lengthy negotiations

between members of the environmental community and the coal

industry and serves to show that agreements on matters pertaining to

surface coal mining can be reached when all parties approach the issue in good faith.

 

132 Cong. Rec. H10935 (October 15, 1986).

 

Fifteen years after the enactment of the Rahall Amendment, the Administrator, under court order, has published final regulations intended to implement the 1987 amendment on coal remining operations.

C. Background On "Western Alkaline Coal Mining Subcategory"

In conjunction with the proposal in this rulemaking addressing coal-remining operations, the Administrator proposed to create a second new subcategory in the categorical effluent limitations for coal mining operations ? "western alkaline coal mining subcategory."

The 2002 rule creates a new distinction between western "alkaline" surface coal mining operations and all other surface coal mining operations. For this subcategory, the Administrator has eliminated numeric effluent limitations for settleable solids and pH that were previously applicable to discharges from "reclamation areas" and certain other areas, and has required instead a plan for application of "best management practices".

An "effluent limitation" is defined by Congress to mean "any restriction established . . on the quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters[.]" CWA Section 502(11), 33 U.S.C. 1361(11). By contrast, a "best management practice", or "BMP," the imposition of which by the Administrator is authorized as a supplement to effluent limitations through CWA Section 304(e), and for reduction of stormwater management through CWA Section 402(p), 33 U.S.C. 1342(p), is defined by the Administrator in 40 CFR. 122.2 to mean "schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of 'waters of the United States.' BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage."

The historical development of effluent guidelines and new source performance standards under the Clean Water Act is contained in the final rule for the Coal Mining Point Source Category: Effluent Limitations Guidelines and New Source Performance Standards, 50 Fed.Reg. 41296 (1985). Some brief discussion of the antecedents to the current rulemaking illumes the distinctions created in the new rule concerning western alkaline coal mines.

To achieve the goals of the Clean Water Act, Congress demanded that existing industrial dischargers achieve "effluent limitations requiring the application" of best practicable control technology (BPT) by July 1, 1977, and best available control technology (BAT) by July 1, 1983. New industrial dischargers were required to comply with "new source performance standards" (NSPS) based on best available demonstrated control technology (BADT). Subsequent amendments to the CWA in 1977 altered the dates for achieving various levels of technological controls over discharges from point sources of these pollutants. These limits were to be incorporated into pollutant discharge permits (NPDES permits).

EPA was unable to promulgate many of the regulations required to provide the guidelines for effluent reductions attainable through the application of varying levels of technology, resulting in litigation and establishment of a schedule for promulgating effluent limitations guidelines and new source performance standards for 21 major industries.

On April 26, 1977, EPA promulgated final BPT effluent limitations guidelines for the coal mining point source category. 42 Fed.Reg. 21330 (1977). On January 12, 1979, EPA promulgated final NSPS standards for that industry. 44 Fed.Reg. 2586 (1979). In 1982 and again in 1985, EPA proposed amendments to the effluent limitations guidelines for coal mining operations, and new source performance standards.

In the January 13, 1981 proposed rule, EPA proposed to eliminate a distinction from prior regulations that accorded special treatment under BPT limitations to western coal mines in six specified states, and to eliminate a distinction created in the New Source Performance Standards for "western coal mines," which had been defined as mines west of the 100^th meridian, and for which NSPS requirements had been reserved.

After extensive data collection, the Administrator proposed that

western mines will not comprise a separate subcategory.

Data collected by EPA indicate that, although western

mines discharge less frequently than facilities located in the

Midwest and east, the effluent characteristics of discharges

considered for regulation from western mines are very similar

to discharges from mines in other geographic regions.

Therefore, today's proposal would apply to all coal mines

wherever located in the United States.

 

46 Fed.Reg. 3141 (1981).

 

The 1981 proposed rulemaking differentiated discharges from mining areas as "Acid or Ferruginous Mine Drainage" or "Alkaline Mine Drainage", and proposed effluent limitations guidelines specifically applicable to "discharges from post-mining areas." 46 Fed.Reg. 3157. For "reclamation areas," limits on the concentration of settleable solids in discharges and on pH were imposed, with alternative limits if the flow was caused by a storm of greater intensity than a 10-year, 24-hour recurrence interval and if the flow was from a treatment facility designed to contain and treat storms of lesser volume.

EPA justified imposition of effluent limitations on post-mining areas based on the wastewater characteristics, which suggested the need for treatment to reduce sediment loads. "Data from the studies," EPA noted, "indicate that settleable solids are consistently reduced in a properly designed and operated pond[.]" 46 Fed.Reg. 3142 (1981).

The Administrator noted that "the most serious potential for post-mining water pollution at surface mines occurs within the first two years after cessation of active mining operations – that is, during the period when reclamation activities may not be complete and the treatment of erosion remains high." Id. at 3145.

The 1982 EPA final rule eliminated the distinction made for "western coal mines" and applied the effluent limitations guidelines to "all coal mines wherever located in the United States", again noting that "[r]ecent data collected by EPA has indicated that the effluent characteristics of discharges from western mines are very similar to discharges from mines in other geographic regions." 47 Fed.Reg. 45382, 45387 (1982).

In 1977, the BPT limitations for coal mine discharges included an exemption from meeting effluent limitations during precipitation events provided that a sediment pond was constructed. In 1981, the same precipitation exemption was proposed with the additional requirement that levels of settleable solids and pH be maintained. In the final 1982 rule, the pond design requirement was eliminated in exchange for the requirement that discharges due to precipitation must meet limits on pH and settleable solids. These limitations were based on the performance of a 10-year, 24-hour pond in controlling sediment, "but it was noted that smaller ponds or alternative technologies could achieve the limitations." 50 Fed.Reg. 41305 (1985). Since 1982, there has not been a requirement in the effluent guidelines mandating the use of a sediment pond by any coal mining operation to achieve the specified effluent limitations, and a range of alternative technologies can be employed, provided that they demonstrate achievement of the applicable effluent limits.

On May 4, 1984, EPA proposed to amend the 1982 effluent limitations guidelines and NSPS in response to settlement of litigation on the prior rules. On October 9, 1985, EPA finalized those amendments to the 1982 rules, 50 Fed.Reg. 41296 (1985).

On January 23, 2002, the Administrator finalized the challenged rule, creating a new subcategory for the Coal Mining Point Source Category by adding a "Western Alkaline Coal Mining Subcategory" for which "best management practices" are substituted for the former requirement of attaining reductions of settleable solids and maintaining a range of pH values in any discharge from reclamation areas and other identified areas associated with mining activities.

D. Standing

Pursuant to Rule 15 of the Federal Rules of Appellate Procedure, 5 U.S.C. Section 706; and 33 U.S.C. Section 1369(b), KRC and CCC by themselves and on behalf of their members, petitioned this Court for review of this final EPA rulemaking.

Petitioner Kentucky Resources Council, Inc. (KRC) is a Kentucky membership non-profit corporation dedicated to prudent use and conservation of the natural resources of the Commonwealth. Headquartered in Frankfort, Kentucky, KRC has approximately 360 individual and organizational members, including numerous individuals who live, work, reside and recreate in areas directly affected by the remining of previously-mined surface coal mining operations.

The Citizens Coal Council (CCC) has both organizational and individual members who reside and transact business in this judicial circuit. CCC is a national membership organization dedicated to clean water, safe homes and a healthy environment for the residents of the nation's coalfields, with 47 member groups residing across the coalfields of the United States. CCC is incorporated in the District of Columbia and maintains offices in Denver, Colorado and Washington, D.C., and includes among its members, two member organizations with a combined membership of over 2051 Kentuckians and 129 individual Kentucky CCC members residing in the Sixth Judicial Circuit, the majority of whom live, work, reside and recreate in areas directly affected by the remining of previously-mined surface coal mining operations. Additionally, CCC has individual and organizational members who live, work and recreate in areas where mining activities that would fall within the new "western alkaline" category are occurring, and whose interests in effective control and minimization of sediment from these mining operations are adversely affected by the final rule.

Petitioners' members are aggrieved parties whose interests in preserving, protecting and restoring the waters of the United States are harmed as a result of the final agency actions.

CCC submitted extensive comments on the rulemaking, [J.A.__], as did KRC. [J.A.__ ].

SUMMARY OF ARGUMENT

Congress defined the limits in Section 301(p) of the Water Quality Act of 1987, for the category of coal remining operations that would be eligible for modified effluent limitations. Congress defined precisely the eligible sites, the pollutants for which modified limits would be available, how categorical numeric effluent limitations would be replaced by site-specific numeric effluent limitations, and how the appropriate level of treatment for pre-existing discharges would be determined for the active mining areas of a remining operation.

The Administrator has disregarded each of these precise limits set by Congress on the coal remining program, and in each case has violated Step One of the Chevron test. The Administrator disregarded the Congressional limits on eligible previously-mined sites and improperly expanded the universe of sites eligible for the "coal remining" category. The Administrator ignored the list of pollutants for which Congress authorized modifications by improperly added an additional pollutant to the list. The Administrator disregarded the clear Congressional mandate that all remining operations meet alternate numerical effluent limits where the categorical effluent limitations are modified, and has instead imposed no such limits. The Administrator ignored the intent of Congress that remining operations intercepting and treating preexisting discharges as part of the remining operation be eligible for modified effluent limits based on case-by-case determination of what is achievable in pollution reduction using "best available technology" and instead demanded that intercepted and commingled discharges meet the more stringent categorical effluent limits during mining. Finally, the Administrator requires that a remining operation treat diverted stormwater to meet the final rules in direct disregard of the language of CWA Section 402(l)(2) prohibiting the Administrator from requiring a permit for such discharges.

In each of these ways, the Administrator has disregarded the plain and unambiguous limits set by Congress in the 1987 amendment, and has usurped Congressional function by improperly broadening the category of sites eligible for relaxed discharge limitations beyond that intended or authorized by Congress.

In the area of the western alkaline coal mining subcategory, the Administrator has violated the plain language of the CWA by eliminating effluent limitations for "reclamation areas" associated with a new subcategory of mining operations created by the Administrator. In lieu of the effluent limitations, the Administrator has required submittal of a reclamation plan applying "best management practices" to displace, rather than supplement effluent limitations; in disregard for the intent of Congress as expressed in CWA Sections 304(b) and (e). The "western alkaline coal mine subcategory" is an irrational and overbroad categorization of sources for which the Administrator proposes no effluent limitations, based on the alleged "infeasibility" of meeting existing effluent limitations. The Administrator has failed to provide a reasonable and sufficient basis to support the abrupt reversal of the previous conclusion that the effluent characteristics of western coal mines did not justify a separate category and to overcome the overwhelming evidence in the record that the existing effluent limits can be achieved. The new subcategory reflects an effort by the Administrator in disregard of Sections 301 and 304 of the CWA to displace effluent limitations with unenforceable and unmeasurable "BMPs" because of the administrator's disagreement with the goal of pollution reduction using best available technology as applied to western coal mines.

ARGUMENT

 

I. STANDARD OF REVIEW

The challenged rule was promulgated through informal rulemaking. The scope of review is governed by U.S.C. 706(2), which requires that this Court must "hold unlawful; and set aside agency action, findings and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2); Wall v. U.S. E.P.A., 265 F.3d. 426, 435 (6^th Cir. 2001); BP Exploration and Oil, Inc. v. US E.P.A., 66 F.3d 784 (6^th Cir. 1995). This Court has acknowledged that "[u]nder this standard, our inquiry is 'searching and careful,' yet in the last analysis, diffident and deferential." GTE Midwest, Inc. v. F.C.C., 233 F.3d 341, 344-5 (6^th Cir. 2000). Nonetheless, the agency must articulate a "rational connection between the facts found and the choice made," [and] must "provide something in the way of documentary support for its action." Id., at 345.

Where, as here, the challenge is to an agency's construction of its organic statute, the challenge is reviewed under the two-step analysis of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-3 (1984). Wall v. U.S. E.P.A., 265 F.3d 426 (6^th Cir. 2001); GTE Midwest, Inc. v. F.C.C., 233 F.3d 341, 347 (6^th Cir. 2000). This Court must first determine whether Congress has directly spoken to the precise question at issue. Chevron at 842. If Congress’ intent is clear, that is the end of the matter; this Court must give effect to the unambiguously expressed intent of Congress. Chevron at 843; National Mining Assn. v. U. S. Dept. of the Interior, 105 F.3d 691, 694 (D.C. Cir. 1997); GTE Midwest, at 347.

The "first step [of Chevron analysis] [i]s conducted under de novo review” in which “[a]n agency is given no deference at all on the question whether a statute is ambiguous.” Cajun Electric Power Cooperative v. FERC, 924 F.2d 1132, 1136 (D.C. Cir. 1991). Accord, Qwest Communications Intl. v. FCC, 229 F.3d 1172, 1176 (D.C. Cir. 2000). In conducting the first step of the Chevron analysis, courts must apply the traditional rules of statutory construction. Chevron, 467 U.S. at 843 n.9. "If, by 'employing traditional tools of statutory construction,' we determine that Congress' intent is clear, 'that is the end of the matter.'" Royal Geropsychiatric Services, Inc. v. Tompkins, et al., 159 F.3d 238, 244 (6^th Cir. 1998), quoting Good Samaritan Hospital v. Shalala, 508 U.S. 402, 409, 124 L.Ed. 2d 368, 113 S.Ct. 2151 (1993).

The traditional tool of statutory construction expressio unius est exclusio alterius – the “mention of one thing implies the exclusion of another thing," applied to Section 301(p) of the Water Quality Act of 1987 compels the conclusion that the Administrator's rulemaking is inconsistent with the intent of Congress as expressed through the statutory language. National Truck Equipment Association v. National Highway Traffic Safety Administration, 972 F.2d 669, 674 (6^th Cir. 1992).

If Congress has not directly addressed the issue, a reviewing court must determine whether the agency's position is 'based on a permissible construction of the statute." GTE Midwest, 233 F.3d at 347. In such a case, the agency interpretation is entitled to deference if it is a reasonable construction, even if there may be other reasonable, or more reasonable, views. Chevron, 467 U.S. at 842-3. However, this Court "must also 'reject administrative constructions . . . that are inconsistent with the statutory mandate,' and conduct a 'searching review'" of the agency's position with respect to the statute. Wall, 265 F.3d at 435.

Agency action is arbitrary or capricious, within the meaning of 5 U.S.C. 706, if (1) the agency has relied on factors which Congress has not intended it to consider, (2) the agency has entirely failed to consider an important aspect of the problem, (3) the agency has offered an explanation for its decision that runs counter to the evidence before it, or (4) the agency’s explanation for its action is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Assn. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983). Reviewing courts may not attempt to make up for such deficiencies by supplying a reasoned basis for the agency’s action that the agency itself has not given. Id.

II. THE ADOPTION OF THE REMINING SUBCATEGORY EFFLUENT LIMITATIONS VIOLATES STEP ONE OF THE CHEVRON STANDARD IN SEVERAL RESPECTS

 

The Administrator violated Step One of the Chevron standard in numerous respects in the adoption of the final rule for coal remining operations. Congress spoke directly and precisely to the scope of the modified permit limits that were intended to be available from the otherwise-applicable categorical effluent limitations for coal mining operations that had been previously published by EPA. Congress bounded the sites eligible for the modified effluent limits to those sites on which the coal remining operation began after February 4, 1987 on a site where coal mining had been conducted before August 3, 1977. Yet the Administrator expanded that category to a limitless universe of sites mined and "abandoned" including even those not yet mined today. Additionally, though Congress made clear that once a previously mined area was remined by a "coal remining operation" it would not be eligible for a modified permit if remined in the future, the Administrator has placed no such limits on future availability of the lower limits.

Congress bounded those effluent limits and pollutants for which modified requirements were available to pH, iron and manganese, and specifically disclaimed any intention to modify suspended solids requirements, yet the Administrator added suspended solids to the list of requirements that could be modified.

Congress bounded the modified requirements by requiring that where the categorical effluent limitations were not required, specific numerical effluent limitations representing a case-by-case determination of the best available technology economically achievable would be required "in each permit", yet the Administrator has allowed modified permits without setting numeric limitations representing case-by-case best available technology.

Finally, Congress intended to allow modified requirements during mining activities only for pre-existing discharges from those areas that had been previously mined and abandoned before 1977 and were being remined, or pre-existing discharges affected by the remining; yet the Administrator has ignored that intent and required that pre-existing discharges encountered by the remining rather than diverted meet the categorical effluent limitations, and limiting the modified permit limits to diverted pre-existing discharges and post-remining discharges.

A. THE ADMINISTRATOR IGNORED THE LANGUAGE AND INTENT OF SECTION 301(P) BY DEFINING "COAL REMINING OPERATION" TO INCLUDE SITES MINED AFTER AUGUST 3, 1977

 

Congress was clear in limiting the availability of case-by-case alternative standards for coal remining operations. Section 301(p), captioned "Modified permit for coal remining operations" is limited to modified requirements for pre-existing discharges of pH, iron and manganese from the "remined area of any coal remining operation" or "affected by the remining operation."

Section 301(p)(3)(A) defines "coal remining operation" to mean a coal mining operation which begins after February 4, 1987, "at a site on which coal mining was conducted before August 3, 1977." (Emphasis added). Further, the term "remined area" is defined to mean "only that area of any coal remining operation on which coal mining was conducted before August 3, 1977." (Emphasis added). Thus to be eligible for modified limits on pH, iron and manganese, a coal mining operation would have to begin remining after February 4, 1987, a site on which previous mining had ended by August 3, 1977.

The Administrator's' final rule contains no such limits, and allows any coal mining operation at a site on which coal mining was previously conducted and where the site has been abandoned or the performance bond has been forfeited, to be eligible, without regard for whether the prior mining occurred before August 3, 1977 or thereafter, and even where the initial coal mining has not yet occurred.

The Administrator acknowledges that Section 301(p) is limited to remining of pre-1977 sites, 67 Fed.Reg. 3373, but claims that the rulemaking is "consistent with, but not identical to, the Rahall Amendment." Id. The Administrator claims the power to extend the modified requirements to sites beyond those identified by Congress as being "within EPA's discretion under section 304(b). Section 304(b), 33 U.S.C. 1314, is the general authority of the Administrator to adopt or revise effluent limitations.

The Administrator is mistaken. The general grant of authority to develop effluent limitations does not "trump" the specific direction by Congress as to how that standard-setting authority is to be used in a particular instance. Independent Community Bankers Of America v. Board Of Governors Of The Federal Reserve System, 195 F.3d 28, 32 (D.C. Cir. 1999); National Mining Association v. U.S. Department of the Interior, 105 F.3d 691, 694 (D.C. Cir. 1997) ⁴ As the Court noted in American Petroleum Institute v. EPA, 52 F.3d 1113 (D.C. Cir. 1995), "EPA cannot rely on its general authority to make rules necessary to carry out its functions when a specific statutory directive defines the relevant functions of EPA in a particular area." 52 F.3d at 1119. See also: Natural Resources Defense Council, Inc. v. Reilly, 976 F.2d 36, 41 (D.C. Cir. 1992); Sierra Club v. EPA, 719 F.2d 436, 455 (D.C. Cir. 1983), cert. denied , 468 U.S. 1204, 82 L.Ed.2d 870, 104 S.Ct. 3571 (1984) (" EPA's construction of the statute is condemned by the general rule that when a statute lists several specific exceptions to the general purpose, others should not be implied.")

With respect to remining of abandoned coal mine sites, Congress has spoken directly to which sites are eligible for modified effluent limitations. While Section 304, 33 U.S.C. 1314(b) outlines the general obligations of the Administrator with respect to effluent limitations, it is Section 301 that defines specifically what those effluent limitations must include with respect to various industrial and municipal categories. Section 301(p) specifically bounds the available effluent limit modifications for coal remining operations, by defining which sites are eligible for the modification from the otherwise applicable effluent limitations. Congress defined those sites eligible under Section 301(p)(3)(A) and (B), modifying the categorical effluent limits otherwise applicable to coal mining operations only for those eligible sites. The intent of Congress was not to allow the Administrator to expand the category of eligible sites. Instead, the sponsor of the amendment explained that "for those situations not addressed by this amendment, the applicable BAT and BCT standards would continue to apply." 131 Cong.Rec. H6039 (July 23, 1985).

The use of a rolling definition of a "coal remining operation" that allows any applicant to obtain modified permit limits for remining an area that has been 'abandoned" or for which the bond has been forfeited" ignores the plain language of Section 301(p)(2) and (3) and disregards the intent of Congress to track, rather than conflict with, the Surface Coal Mining and Reclamation Act of 1977. The August 3, 1977 date was intended by Representative Rahall to bound the availability of modified effluent limits to those sites considered "abandoned" mine lands under SMCRA; i.e. those "affected by such mining . . . and abandoned or left in an inadequate reclamation status prior to [August 3, 1977] and for which there is no continuing reclamation responsibility under State or other Federal laws." 30 U.S.C. 1234. 131 Cong. Rec. H6038-9 (July 23, 1985). After August 3, 1977, any surface coal mining operation became subject to the permitting, performance and enforcement provisions of SMCRA. After that date there IS a continuing legal responsibility for reclamation under state and federal law as long as a site remains unreclaimed. Where Congress used the term "abandoned coal mine sites," it defined the term to mean those "left in an orphaned state prior to enactment of the 1977 statute[ ] ". 131 Cong. Rec. H6038 (July 23, 1985). By defining "abandoned" to include post-1977 sites mined under the 1977 law, the rule is inconsistent with SMCRA and in violation of Section 301(p).⁵

B. THE ADMINISTRATOR HAS IGNORED THE LANGUAGE AND INTENT OF SECTION 301(P) BY ALLOWING MODIFIED EFFLUENT LIMITS FOR TOTAL SUSPENDED SOLIDS

 

Section 301(p) was a carefully crafted modification to the otherwise-applicable effluent limitations that had been adopted by the Administrator for the coal mining category of dischargers. Representative Rahall noted in proposing the 1984 amendment that became Section 301(p) that the language "has been agreed to by all those with an interest in this issue." Section 301(p) proposed to allow modified limits for pre-existing discharges of only three pollutants: pH, iron and manganese.

Notwithstanding this clear indication of Congress' intent, the Administrator has included a fourth pollutant to those for which modified limits will be available – total suspended solids.

The Administrator justifies this action as being within the "EPA's discretion under section 304(b)." 67 Fed.Reg. 3403. According to the Administrator, the final regulations are "consistent with, but not necessarily identical to, the provisions of the Rahall Amendment." Id.

In actuality, the Administrator has transgressed the specific boundaries imposed by Congress on allowing modifications to effluent limits for coal remining operations, and the resulting rule is flatly inconsistent with the intent and language of Section 301(p), which strictly bounds the available modifications.

The modified limits for suspended solids is inconsistent with the Rahall Amendment language, and also with Congress' expressed intention not to vary suspended solids controls under the surface mining act. Section 301(p)(4). Congress was obviously well-aware of the existing categorical effluent limitations for solids as applied to mining operations and thus could have but did not include solids within the class of pollutants for which modified limits were available.

Congress spoke precisely to the question of which pollutant limits could be modified under a coal remining permit, and the agency cannot use general rulemaking authority to trump that specific limitation by adding new pollutants to a statutorily specified list. American Petroleum Institute v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995).

C. THE ADMINISTRATOR HAS IGNORED THE LANGUAGE AND INTENT OF SECTION 301(P) BY ALLOWING REMINING OPERATIONS TO RECEIVE PERMITS THAT LACK NUMERICAL EFFLUENT LIMITATIONS FOR IRON, MANGANESE AND pH

 

The language of Section 301(p) and the legislative history could be no more clear, precise and compelling in demanding that where the categorical effluent limitations for iron, manganese and pH were modified for pre-existing discharges from coal remining operations, that:

[s]uch modified requirements shall apply the best available technology economically achievable on a case-by-case basis, using best professional judgment, to set specific numerical effluent limitations in each permit.

 

Despite this unambiguous mandate that "each" modified permit "shall" contain "specific numerical effluent limitations," the final rule allows issuance of coal remining permits under Section 301(p) which do not contain numeric limitations, but instead rely on a "pollution abatement plan" proposing to implement "best management practices". Under Section 301(p), Congress contemplated that the effluent limits could be modified, not eliminated. The permit applicant would determine the concentration of the pollutants under baseline conditions (baseline loadings, as EPA calls it), and a specific determination of the best available control technology would be made for that operation by the permit writer using best professional judgment, resulting in imposition of alternative numeric limits for each pollutant with the backstops that water quality standards would be met and that the baseline conditions could not be exceeded.

The Administrator ignores Section 301(p)(1), instead allowing a modified permit to be issued with no alternative numerical limits. EPA proposes that the only enforceable limits would be baseline loadings, with the application of "best management practices" under a "pollution abatement plan." Where it is "infeasible" to document baseline loading conditions, the Administrator waives even that requirement, making the prohibition against worsening baseline conditions entirely unenforceable.

The Administrator justifies these blatant contradictions of the mandate of Section 301(p) as a function of the agency's authority under CWA Section 502. 33 U.S.C. 1362. "EPA interprets the definition of 'effluent limitation' in section 502 of the CWA to include non-numeric effluent limitations where it is not feasible to establish numeric effluent limitations." 67 Fed.Reg. 3378. The Administrator again seeks to employ general rulemaking authority to avoid the plain command of Congress. Regardless of how the Administrator may view Section 502, or whether the Administrator believes that coal remining operations are a category of discharges for which effluent limitations are "infeasible" and thus best management practices are appropriate under authority the Administrator claims through 40 CFR. 122.44(k), Congress demanding specifically that for any coal remining operation receiving a modified permit, "specific numerical effluent limitations" be imposed. Construing "numerical effluent limitations" in the context used in Section 301(p)(2) to mean "non-numeric limitations" or "best management practices" is simply absurd. The regulation violates Step One of Chevron by allowing any modified coal remining permit to be issued without specific numeric effluent limitations.

The regulation violates the first step of Chevron for a second reason. In the context of Section 301(p), "best management practices" are clearly not "specific numerical effluent limitations". In fact, "best management practices" are not considered by Congress to be "effluent limitations" at all, but instead are intended as a supplement to effluent limitations imposed in order to augment control of runoff from certain industrial areas. CWA Section 304(e), captioned "Best management practices," authorizes the Administrator to publish regulations "supplemental to any effluent limitations specified under subsections (b) and (c) of this section for a class or category of point sources . . . to control plant site runoff, spillage or leaks, sludge or waste disposal, and drainage from raw material storage[.]" Best management practices are supplemental to effluent limitations, according to Section 304(e), but are not considered to be effluent limitations, which are separately authorized in Section 304(b) and are referred to by Section 304(e). The EPA disregard of the obligation to impose specific numerical effluent limitations and substitution of "best management practices" for effluent limitations, is inconsistent with the language of Section 301(p).⁶ The suggestion that "best management practices" are the equivalent of effluent limitations flies in the face of the distinction drawn by Congress in Section 304(e) and 304(b) and by the agency in defining the terms. 40 CFR 122.2.

The proposal to use "best management practices" in lieu of specific numeric effluent limitations fails the second-step of the Chevron analysis as well, since even if "numeric effluent limitations" were ambiguous, use of BMPs for which no limits are set is not a reasonable construction of the statute that is consistent with legislative intent. Representative Rahall stressed that Section 301(p) "would still lead to the inclusion of specific, albeit modified, numerical effluent limitations in the applicant's permit." 131 Cong. Rec. H6039 (July 23, 1985). A rule which providing no numeric limitations is not a reasonable interpretation of the statute.

The rule is inconsistent with Section 301(p) for yet another reason. Section 301(p) limits the availability of modified permit limits for pH, iron and manganese by demanding that in no event can the pollutant levels exceed the pre-existing baseline loading, and further providing that the modified effluent limits cannot violate state water quality standards (which are established under the CWA Section 401 to limit concentrations of pollutants in waterbodies in order to maintain water quality at a level sufficient to support the designated use(s)). Despite these requirements, the rule allows modified permits to issue with no baseline pollutant information based on a determination that it is "infeasible" to collect such information.

The EPA approach of using "BMPs" in lieu of case-by-case determination and imposition of numeric effluent limitations is irrational as well, since the EPA acknowledges that it cannot assure that application of BMPs will result in quantifiable water quality improvements. During development of the final rule, the Kentucky Division of Water noted the problem with substituting BMPs for effluent limitations is that "none of these BMPs have a documented reproducible correlation between the application of a BMP and a quantifiable improvement in water quality." J.A. ____

EPA admitted that use of BMPs does not necessarily assure pollution reductions:

The problem with setting numeric effluent limitations representing the reductions achieved through implementation of a pollution abatement plan is that it is difficult to project the results, in terms of measured improvements in pre-existing pollutant discharges, that will be produced through the application of any given BMP or group of BMPs at a particular site. . . . the Coal Remining BMP Guidance Manual provides only reasonable estimates of projected performance and efficiency. There are numerous variables associated with the design, implementation and effectiveness of a particular BMP or group of BMPs at a particular site. Additionally, application of these estimates is subject to substantial, site-specific uncertainties. In some cases, despite appropriate design and implementation of a BMP plan, there is the potential for little improvement over baseline discharges. For these reasons, it is not feasible to project the expected numeric improvements that will occur for a specific pre-existing discharge through application of a particular BMP plan. As a consequence, EPA is establishing a case-by-case non-numeric requirement to implement a pollution abatement plan incorporating BMPs designed to reduce the pollutant levels of acidity, iron, manganese, and solids (TSS or SS) in pre-existing discharges.

 

67 Fed. Reg. 3379.

 

EPA's admission that the BMP approach precludes any determination of what reductions, if any, will occur through application of one or more BMPs, makes the approach inconsistent with the requirements of Section 301(p) that "the coal remining operation will result in the potential for improved water quality from the remining operation" and that "[n]o discharge from, or affected by, the remining operation shall exceed State water quality standards[.]" For these reasons, under either the first or second step of Chevron, the displacement of numeric effluent limits with BMPs fails to satisfy the requirements of CWA Sections 301(p) and 304(b).

Finally, the EPA rule is incompatible with Congress' rejection of any credit for background conditions. By proposing a rule which sets no effluent limits based on BAT and requires only that the operator not worsen background conditions and apply best management practices, EPA resurrects the equivalent of the original H.R. 3282, which allowed the operator to avoid responsibility for background conditions, and which was rejected by Congress in lieu of the carefully negotiated and defined language of Section 301(p).

D. THE ADMINISTRATOR HAS IGNORED THE LANGUAGE AND INTENT OF RAHALL AMENDMENT BY REQUIRING ENCOUNTERED AND COMMINGLED PREEXISTING DISCHARGES TO BE TREATED TO CATEGORICAL STANDARDS AND BY REQUIRING TREATMENT OF DIVERTED DISCHARGES

 

The Rahall Amendment was to provide some degree of incentive for coal mining operators to remine abandoned coal mine areas by providing a degree of relief from categorical standards, to account for site-specific conditions, and establish specific alternative numerical limits, with a floor requirement of not worsening existing conditions. This goal is subverted by the final rule, with the likely result that KRC and CCC members will continue to live with the legacy of pre-SMCRA sites that will not be remined due to application of the categorical effluent standards by EPA.

While impermissibly broadening eligible sites, adding new pollutant parameters, and failing to impose alternate numerical discharge limitations, EPA has interpreted and applied the Rahall Amendment in such a narrow manner as to eviscerate the intent of the provision and to increase, rather than relieve, the burden of remining abandoned mines.

Under the categorical effluent limitations that apply to coal mining operations, a permittee must meet the limits for pH, iron and manganese prior to discharging any runoff from the disturbed area. Water diverted from the disturbed area is not required to be treated prior to discharge.

Under the final rule, EPA requires that all pre-existing discharges that are intercepted by active mining or that is commingled with waste streams from active mining areas to be treated to the higher categorical standards. 40 CFR. 434.71(b). The availability of the alternative standards for iron, manganese, and pH are limited to discharges that are "relocated" or diverted, 67 Fed.Reg. 3378, and to pre-existing discharges remaining "after commingling has ceased." Id.

By requiring that pre-existing discharges be treated to the more stringent standards if encountered by the remining, and allowing lower standards of responsibility for treatment of the pre-existing discharges only for pre-existing discharges remaining after mining and reclamation is complete, EPA encourages the avoidance of, rather than the remining of abandoned areas with pre-existing discharges.

By requiring diverted pre-existing disharges to be treated to modified limits, the rule creates a higher degree of responsibility for management of diverted runoff than the CWA allows or any other mining operation must meet.

1. The Administrator Has Misread And Misapplied The Rahall Amendment And Has Ignored The Intent Of The Statute

 

Section 301(p) allows coal remining operations to obtain modified numerical limits "with respect to the pH level of any pre-existing discharge, and with respect to pre-existing discharges of iron and manganese from the remined area of any coal remining operation or with respect to the pH level or level of iron or manganese in any pre-existing discharge affected by the remining operation." 33 U.S.C. 1311(p)(1). The final rule limits the availability of these modifications to those pre-existing discharges that are "relocated" and which are not "intercepted by active mining" or "commingled with waste streams from active mining areas for treatment", and post-remining pre-existing discharges.⁷

By applying the Rahall amendment to exclude intercepted and commingled discharges, EPA ignores the plain language of Section 301(p) and removes any of the incentive for remining that Congress intended.

The statute contemplates that pre-existing discharges will be encountered, intercepted, and treated as part of the remining operation, since the modified requirements apply to "pre-existing discharges from the remined area of any coal remining operation[]" (emphasis added), as well as to those pre-existing discharges "affected by the remining operation."⁸ The "remined area" is defined as only that area of any remining operation on which pre- August 3, 1977 mining occurred; distinguishing that area from others that might be included within a mining permit area but which are not "remining".

By requiring that pre-existing discharges intercepted or commingled for treatment as part of the remining meet the higher categorical standards, EPA has restricted the availability of the modified requirements only to those pre-existing discharges that are not affected by the mining, in direct contradiction of Section 301(p)(1). The rule eviscerates the relief intended to be provided, with the result that operators will divert the pre-existing discharges around a mine site if possible, or will continue to avoid those previously mined areas with pre-existing discharges altogether.

Section 301(p) was enacted to create an incentive to include areas with pre-existing discharges in the active mining area by allowing modifications to the standards in order to achieve incremental improvement while not necessarily meeting categorical effluent standards. As explained by Representative Rahall:

Industry in many instances, has not been prone to remine

abandoned coal mine sites because it would then become liable for treating the preexisting discharges. Treating these discharges is often technically or economically infeasible, especially for the small coal operator. . . . Under the amendment which I have authored . . . the Administrator . . . may issue an NPDES permit which modifies [categorical effluent limitations] for the coal mining industry for the level of pH in any preexisting discharge and for preexisting discharges of iron and manganese in situations where the coal operator intends to remine an abandoned coal mine site.

 

131 Cong. Rec. H6038 (July 23, 1985)(Emphasis added).

 

The intent was to encourage operators to encounter previously mined areas with their pre-existing discharges and to redisturbed and reclaim those areas. The EPA rulemaking discourages remining by limiting the availability of modified requirements for pH, iron and manganese to pre-existing discharges that are not intercepted nor commingled for treatment, i.e. pre-existing discharges that are diverted and those remaining after the remining. The rulemaking violates Step One of Chevron; however to the extent that this Court finds the phrase "pre-existing discharges" to be ambiguous in context, the interpretation accorded the phrase by EPA is not a reasonable one since it is inconsistent with the intent of encouraging mine operators to remine, rather than avoid, previously mined areas.

Ironically, the final rule imposes a higher level of responsibility on a coal remining operation with respect to diverted stormwater than is currently required of any coal mining operation, in violation of Section 402 of the Act. That section provides that the Administrator

shall not require a permit under this section, nor shall the Administrator directly or indirectly require any State to require a permit, for discharges of stormwater runoff from mining operations . . . composed entirely of flows which are from conveyances . . . used for collecting and conveying precipitation runoff and which are not contaminated by contact with or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.

 

Section 402(l)(2).

 

By imposing a level of treatment responsibility for stormwater that flows from previously-mined areas and is diverted around the remining operation, the Administrator transgresses the prohibition in CWA Section 402(i)(2).

III. THE ADMINISTRATOR HAS DISREGARDED THE PLAIN LANGUAGE OF THE CWA IN CREATING A NEW SUBCATEGORY OF WESTERN ALKALINE COAL MINING AND ELIMINATING EFFLUENT LIMITATIONS FOR THAT SUBCATEGORY; AND HAS FAILED TO PROVIDE A REASONED JUSTIFICATION FOR ELIMINATION OF EFFLUENT LIMITATIONS FOR THAT SUBCATEGORY OF MINING OPERATIONS

 

Prior to the challenged final rule, western coal mines were required to achieve the same effluent limitations as other coal mines in the nation regarding any discharge from active and reclamation areas of a coal mining operation. For active mining areas, if the mine operation was classified as acid or ferruginous, one set of numeric effluent limitations applied; conversely if the mine was classified as alkaline, another similar set attached. For "reclamation areas," defined as those areas that had been returned to the required contour and on which seeding and planting work had commenced, numerical effluent limitations of .5 ml/l of settleable solids, and a range of pH between 6.0 and 9.0 were required to be met. Alternative effluent limitations were available depending on the intensity of the storm event. 40 CFR Part 434.

Under the final rule, for the newly-created category of "western alkaline coal mines", the effluent limitation on the concentration of settleable solids and pH have been eliminated, and replaced only with a requirement that the operator submit a "site-specific Sediment Control Plan" that is designed to prevent an increase in the "average annual sediment yield from pre-mined, undisturbed conditions" using "best management practices."

In order to fully appreciate the numerous respects in which the final rule violates the CWA, it is necessary to explain the Administrator's "logic" behind the creation of the new coal mining subcategory and elimination of numeric effluent limitations.

The new standards in the final rule for the "Western Alkaline Coal Mining Subcategory" apply to "alkaline mine drainage from reclamation areas, brushing and grubbing areas, topsoil stockpiling areas, and regarded areas." 67 Fed.Reg. 3380. EPA's basis for action is this:

This new subcategory is being created primarily because of

negative impacts caused by the predominant use of sedimen-

tation ponds necessary to meet the guidelines for Subpart

D – Alkaline Mine Drainage.

 

Id.

 

Elsewhere in the preamble to the rule, the Administrator noted that:

EPA has determined that the predominant use of

sedimentation ponds in order to meet the Subpart E

numeric standards for settleable solids have caused

negative impacts in arid and semiarid environments. This is

predominantly due to the large land areas and volume

of runoff that must be controlled through ponds in order

to meet a sediment limit that is not appropriate for

runoff in the arid and semiarid regions of the western

United States.

 

67 Fed.Reg. at 3381.

 

A. THE ADMINISTRATOR LACKS THE AUTHORITY TO ELIMINATE EFFLUENT LIMITATIONS IN LIEU OF APPLICATION OF BEST MANAGEMENT PRACTICES

 

The elimination of effluent limitations in lieu of best management practices for this new subcategory is contrary to the clear language of CWA Sections 304(b) and (e). First, CWA Section 301 requires the establishment of effluent limitations for the coal mining category, which may be supplemented with "best management practices" but not supplanted by application of "best management practices." CWA Section 304 provides that the Administrator's "may publish regulations, supplemental to any effluent limitations specified under subsections (b) and (c)[.]" (Emphasis added).

"Effluent limitations" are defined under CWA Section 502 to mean

any restriction . . . on the quantities, rates, and concen-

trations of chemical, physical, biological, and other

constituents which are discharged from point sources

into navigable waters . . . .

 

The establishment of effluent limitations is driven by the goal of the Clean Water Act of "eliminating the discharge of all pollutants[.]" CWA Section 301(b)(2). CWA Section 304(b) defines the efficacy of effluent limitations based on "the degree of effluent reduction attainable". See, for example, CWA 304(b)(1)(A).

The Administrator is without the authority to merely eliminate effluent limitations based on the degree of effluent reduction achievable and to incorporate best management practices as effluent limitations. To do so violates Step One of ­Chevron since Section 304(b) requires development of effluent limitations and Section 304(e) authorizes best management practices under certain conditions to supplement those effluent limits, not to supplant them.

B. TO THE EXTENT THAT THE ADMINISTRATOR CAN AVOID IMPOSING EFFLUENT LIMITATIONS, THE ADMINISTRATOR HAS FAILED TO DEMONSTRATE THAT CONTINUED IMPOSITION OF THE CURRENT EFFLUENT LIMITATIONS FOR SETTLEABLE SOLIDS AND Ph ARE "INFEASIBLE"

 

The Administrator relies on the language of 40 CFR. 122.44(k) as the source of the agency authority to use "best management practices" in lieu of establishing a numerical effluent limitation. 40 CFR. 122.44(k). That section provides in relevant part that:

[E]ach NPDES permit shall include conditions meeting

the following requirements when applicable.

 

(a)(1) Technology-based effluent limitations and standards[.]

 

* * * *

(k) Best management practices (BMPs) to control or abate

the discharge of pollutants when:

 

(1) Authorized under section 304(e) of the CWA for control

Of toxic pollutants and hazardous substances from ancillary

industrial activities;

(2) Authorized under section 402(p) of the CWA for the

control of storm water discharges;

(3) Numeric effluent limitations are infeasible; or

(4) The practices are reasonably necessary to achieve

effluent limitations and standards or to carry out the purposes

and intent of the CWA.

 

40 CFR. 122.44(k).

 

The Administrator rests the elimination of numeric effluent limitations for settleable solids and pH on the claim that such limitations are "infeasible" but the rulemaking record proves that assertion false and the decision, "arbitrary and capricious" within the meaning of 5 U.S.C. Section 706. There is no evidence in the administrative record that the current settleable solids requirements cannot be met using one or a combination of point source controls; in fact the evidence is precisely to the contrary.

When the application of effluent limitations is to be deemed "infeasible" less than 40 CFR. 122.44(k) is not defined by the agency, but the term is defined in common parlance as meaning

Whether implementation of an effluent limitation is feasible must turn on whether that effluent limitation can achieve the goal of the CWA for effluent limitations, which is the reduction of the pollutant in the wastewater. The Administrator acknowledges throughout the rulemaking record that meeting the current numeric effluent limitations is feasible:

EPA notes that sedimentation ponds are considered

an effective BMP for controlling sediment, and that

sedimentation ponds may be used in conjunction with

other BMP's in order to control sediment loads.

 

67 Fed.Reg. 3381.

 

[S]edimentation ponds are proven to be effective at reducing

sediment discharge[.]

 

67 Fed.Reg. 3384.

 

The potential impacts of the predominant use of sedimentation

Ponds to control settleable solids in these regions include reduced sediment loads to natural drainage features [.]"

 

67 Fed.Reg. 3390.

 

Indeed, the only aspect of the current effluent limitations for post-mining reclamation areas that the Administrator identifies as being "infeasible" is the cost to the mining operator of sampling to determine compliance. EPA claims that because precipitation events are often "localized, high-intensity, short-duration thunderstorm and watersheds often cover vast and isolated areas" it is "burdensome for a permitting authority or mining operator to extract periodic, meaningful samples on a timely basis to determine if a facility is meeting effluent limitations for settleable solids." 67 Fed.Reg. 3381.

Accepting for the moment that sample collection is "burdensome", it is no basis for determining that compliance cannot be achieved with effluent limits that have been in place for some twenty years, merely that the sampling method to verify compliance may need adjustment.

In reality, the claimed sampling burden is no basis for rejecting application of numeric limits, since regardless of what method or standard is used to judge acceptable levels of sediment reduction, some method of field verification through sampling will be required. Further, since the mining operation is occurring in that "vast and isolated area" and all drainage from disturbed areas is required to be managed and collected, finding the location(s) to sample is not that difficult. Finally, the alternative effluent limitations already available for this class of mining operations provide relief from solids limits for any storm over a certain intensity, above which only pH must be managed.

In short, there is nothing remotely infeasible about the current effluent limitations such as would justify the wholesale elimination of numeric effluent limitations that have been in place since 1985 for all mines west of the 100^th meridian receiving less than 26 inches of rain. The rulemaking record does not support the conclusion that attaining the effluent limits is infeasible, and thus the rule is arbitrary and capricious. Motor Vehicle Mfrs. Assn. v. State Farm Mutt. Ins. Co., 463 U.S. 29, 43 (1983).

 

C. THE "WESTERN ALKALINE MINING SUBCATEGORY

IS AN IRRATIONAL AND OVERBROAD CATEGORIZATION

INTENDED TO ACHIEVE A GOAL INCONSISTENT WITH

THE CWA AND SMCRA

 

The Administrator has, with the sweep of a pen, carved out of the category of "alkaline" coal mining operations, a "western alkaline" subcategory for which numeric effluent limitations on settleable solids and pH will no longer apply to certain identified areas and to the entire mine area during reclamation.

The only justification that the Administrator provides for creating the new mining subcategory and eliminating numeric effluent limits for settleable solids from reclamation and other areas within this category is the unsupported assertion that in some cases the use of one available technological control on sediment (sediment ponds) has caused "negative environmental impacts." Rather than addressing the perceived problem in any manner tailored to the scope of the claimed problem, the Administrator has relieved all coal mines west of the 100^th meridian in areas with less than 26 inches of rainfall from meeting admittedly-achievable effluent reductions for settleable solids.

One is left mouth agape trying to fathom the basis for categorically eliminating numeric sediment controls for all western mines in arid and semi-arid areas despite the admitted lack of necessity for so doing. Nothing in the existing EPA regulations requires that sedimentation ponds be used to meet the current effluent limits. While the level of control for settleable solids established as the effluent limitations for "reclamation areas" of mining operations was based on the demonstrated levels of sediment reduction achievable through the use of sediment ponds, the mine operator is already free to use other treatment approaches provided that the effluent limitations are met.

Yet because of perceived problems associated with the use of one control technology (sedimentation ponds) to meet the effluent limits, the Administrator has eliminated the effluent limits entirely. The "remedy" of eliminating numeric effluent limits for all western alkaline mines in arid and semiarid regions bears no logical relationship to scope of the perceived problem, which is "negative environmental impacts" from the use of one control technology (sediment ponds) in some cases, and is thus arbitrary and irrational and violates 5 U.S.C. 706. State Farm, at 43.

The Administrator has failed to adequately explain and justify the sweeping scope of the new category in light of the admission that the perceived problem with sedimentation ponds is not a universal problem within the arid and semiarid regions:

EPA also recognizes that sedimentation ponds do not

necessarily cause negative environmental impacts in all

cases.

 

67 Fed.Reg. 3381.

EPA notes that it has received comments from other stakeholders which have both agreed and disagreed with EPA's assertion that sedimentation ponds may be causing negative environmental impacts. EPA believes that sedimentation ponds, when constructed to

meet numeric discharge standards, may cause negative

environmental impacts in certain circumstances. EPA listed the potential impacts in the proposal which include loss of water due to evaporation, additional land disturbance, accelerated erosion, and upset of the natural hydrologic balance. While in many cases sedimentation ponds are not causing negative impacts, EPA also

believes that there are instances where sedimentation ponds are causing upsets to the natural hydrologic balance.

 

67 Fed.Reg. 3404.

 

To the extent that the perceived "negative environmental impacts" provide a permissible basis on which the Administrator can determine appropriate effluent limitations for this industrial category, the admission by the Administrator that those impacts do not necessarily follow use of this technology for meeting existing standards in "many" cases dooms the effort to remove the standards categorically for all alkaline-discharging mines west of the 100^th meridian in arid and semi-arid regions as being unsupported by the evidence, and thus "arbitrary and capricious" under the State Farm enunciation of the standards of 5 U.S.C. 706.

What is at the heart of this rulemaking is that the Administrator no longer believes that the Congressional goal for reduction of sediment is appropriate for western coal mines. It is not that the Administrator believes sedimentation ponds are not feasible or effective in achieving sediment reductions to the former effluent limits in western arid and semi-arid areas. It is not that use of sedimentation ponds necessarily results in "negative environmental impacts." It is instead that the Administrator wishes to rewrite the goals and purposes of the Clean Water Act to replace "elimination of pollutants" with "not upsetting the natural hydrologic balance." 67 Fed.Reg. 3404. Sediment, apparently, has ceased to be a pollutant that the Administrator believes she is obligated to require to be reduced to greatest level achievable using best technology. Instead, the Administrator has redefined the goal for effluent reductions from mining operations in the west as "maintain[ing] sediment loads at pre-disturbed conditions."

The preamble is telling in this regard. In explaining the new subcategory, the Administrator notes that using ponds to meet the existing standards have caused "negative impacts in arid and semiarid environments. This is predominantly due," explained the Administrator "to the large land areas and volume of runoff that must be controlled through ponds to meet a sediment limit that is not appropriate for runoff in the arid and semiarid regions of the western United States." 67 Fed.Reg. 3381.

Why does the Administrator believe the sediment limit is inappropriate? Apparently, because "background sediment concentrations in the arid and semiarid west are significantly higher than the 0.5 ml.l standard" and that the Administrator believes "that the most environmentally responsible goal is to maintain sediment loads at pre-disturbed conditions." 67 Fed.Reg. 3404.

In essence, the Administrator opposes continued application of the admittedly-achievable numeric effluent limits because they make runoff from reclamation areas of alkaline coal mines in the west too clean.

Unfortunately for the Administrator, the new goal of applying BMPs to maintain sediment loads at background or "natural" conditions is irreconcilably inconsistent with the intent of Congress with respect to effluent controls for surface coal mining operations.

It might be sufficient, in response to the Administrator's proposal to redefine the endpoint of effluent limits at "natural background conditions" rather than maximum achievable reduction in pollutants through "best available technology, to reflect on the inconsistency of the approach with the CWA itself, for Congress has set the goal for effluent limits in the Clean Water Act. The effluent limitations for this industrial category are to be based on the degree of pollutant reduction achievable through application of the "best available technology." 33 U.S.C. 1314(b). EPA is directed to identify the levels of pollutant reduction achievable for the classes of industrial dischargers based on best technology (practicable or available as the case may be). Nothing in the law suggests or implies that effluent reductions are to be limited to "pre-disturbed conditions."

Beyond the confines of the CWA, however, Congress has made clear how it expects sediment loading to be managed by coal mining operations. Section 515(b)(10)(B)(i) of SMCRA demands that mining be conducted

so as to prevent, to the extent possible using the best

technology currently available, additional contributions of

suspended solids to streamflow, or runoff outside the

permit area, but in no event shall contributions be in

excess of requirements set by applicable State or

Federal law[.]

 

Any possibility that the Administrator's new interpretation of the phrase "best available technology economically achievable" as meaning "apply BMPs to control to a level approximating background sediment loading" is foreclosed by the legislative history to Section 515 of SMCRA.

The 1977 Surface Mining Control and Reclamation Act was the product of a House bill, H.R. 2, and Senate Amendments, S.7, that were reconciled in conference committee. Senate Bill 7 contained a provision requiring that the operator minimize the disturbances to the prevailing hydrologic balance by:

conducting surface coal mining operations so as to prevent, to

the extent possible using the best technology currently available,

additional contributions of suspended solids to streamflow or

runoff outside the permit area above natural levels under

seasonal flow conditions as measured prior to any mining [.]

 

S. Rept. No. 95-128, 95^th Cong., 1^st Sess. 25 (1977). (Emphasis added).

 

The Conference Committee rejected the Senate language in lieu of the language in the House-passed bill, H.R. 2, which became the text of Section 515(b)(10)(B)(i). 30 U.S.C. 1265.

Any question as to whether the House actually rejected the idea of capping "best available technology" at "natural" or "background" levels is answered with reference to the House Committee deliberation on sediment control technology and the Act's goals. In discussing its expectations regarding the levels of reductions of sediment desired, the House said this:

Similarly, technology exists to prevent increased sediment

loads resulting from mining . . . Sediment or siltation

control systems are generally designed on a mine-by-mine basis which could involve several drainage areas or on a small-drainage-area basis may serve several mines. There are a number of

different measures that when applied singly or in combination

can remove virtually all sediment or silt resulting from the

mining operation. A range of individual siltation control

measures include: erosion and sediment control structures,

chemicals oil stabilizers, mulches, mulch blankets, and special

control practices such as adjusting the timing and sequencing

of earth movement, pumping drainage, and establishing

vegetative filter strips.

 

One example of the best available technology for sediment control

which is applicable throughout the U.S. and can be used on a

mine-by-mine or a multiple-mine basis, is that technology employed

at the surface coal mine of the Washington Irrigation and Development Co. [in Centralia, WA]. The general geographic

characteristics of this area are common to other coal areas. . .

 

* * *

In this instance, in order to meet year-round water quality

standards . . . the company designed a relatively inexpensive

method for settling virtually all of the sediment in the surface

runoff from the mining operation. Several sets of double

siltation entrapment ponds were constructed on the small tributaries leaving the mine property. Elimination of sediment loads is

achieved through a two stage process, with the initial gravity settling

occurring in the first pond and the introduction of biologically inert flocculating compound into the flow between ponds. This results

in a discharge that contains even less silt than the normal background

flow[.]

 

This technology sets a standard for the industry and is representative of the innovation the mining industry can achieve when required to meet specific water standards as a precondition to operation.

 

H.R. Rept. 95-218, 114-5, 95^th Cong. 1^st Sess. (1977) (Emphasis added).

 

The House clearly intended that BAT represent the maximum reduction of sediments from runoff from mined areas; not merely lowering sediment levels to approximate background. The final rule ignores the plain language of the CWA and SMCRA, and to the extent that Section 515(b)(10)(B) is perceived to be ambiguous, the legislative history to H.R. 2 underscores that the elimination of the Senate language capping BAT at "background" levels was consciously and deliberately rejected.

In the 1982 rule incorporating EPA's coal mining effluent limitations, OSM rejected setting effluent limits for sediment based on the "natural sediment-carrying capacity" or "base condition[s]" as being inconsistent with the CWA as well. 47 Fed.Reg. 47219.

In setting the BAT goal, Congress specifically considered the effects of coal mining on the hydrologic balance in the arid and semiarid areas of the country; H.R. Rept. 95-218, pp. 111-112, 95^th Cong. 1^st Sess. (1977); including such impacts as the alteration of drainage patterns, decreases in storm runoff volume, and loss of recharge to aquifers. Id. at 111. Congress understood that the minimum standards of the mining law would not be "wholly sufficient to meet the objectives of 'minimizing disturbances to the prevailing hydrologic balance' [and] anticipated "that the State regulatory authorities will strengthen such provisions and require whatever additional measures are necessary to meet local conditions." Id. at 110. The asserted existence of "negative environmental" impacts in some cases associated with the control of sediment using one technology may suggest a need for mitigation through adoption of such measures.⁹ But the claimed existence of some "negative" impacts does not provide a rational or permissible basis for eliminating the obligation, imposed under the CWA and underscored by SMCRA, to use best available technology to remove additional contributions of sediment off-site to the extent possible, even to below background levels.

The final rule uses the "strawman" of sedimentation pond "negative impacts" as an excuse to eliminate numeric effluent limits representing best available reduction technology because the Administrator no longer believes that such reductions are appropriate, not because they are infeasible or because for all of the mines in the new subcategory, application of those technologies result in "negative impacts."

Assuming that Congress had not spoken clearly and precisely in rejecting the concept of BAT being capped at "background" sedimentation loadings, the Administrator's choice of remedy for the perceived problem is unreasonable and arbitrary.

What does the Administrator employ in remedy the problem of "too clean" water? Rather than adjusting numeric effluent limitations to reflect a level of sediment reduction that the EPA believes is appropriate, no new numeric effluent limit is set for sediment. Instead, as with coal remining operations, "best management practices" are to be employed.

Assuming that "pre-disturbed conditions" were the appropriate standard against which to measure the quality of the runoff from western mining areas, the approach chosen fails to assure that the pre-disturbance level of sediment loading will be maintained. The final rule displaces enforceable numeric permit limits with a "sediment control plan" proposing "best management practices" which "[u]sing watershed models, the operator [ ] demonstrate[s] . . . will result in average annual sediment yields that will not be greater than the sediment yield levels from premined, undisturbed conditions." 40 CFR. 434.82. The operator is required to "design, implement, and maintain BMPs in the manner specified in the Sediment Control Plan," 40 CFR. 434.83, but there is no monitoring obligation, no enforceable standard against which to judge the effectiveness of the BMPs, and no assurance that the BMPs as deployed will achieve the desired level of sediment loading.

EPA has acknowledged that BMPs provide no assurance of meeting standards in defending why it could not set a numeric standard reflecting performance of BMPs:

The problem with setting numeric effluent limitations repre-

senting the reductions achieved through implementation of a

pollution abatement plan is that it is difficult to project the

results, in terms of measured improvements in pre-existing

pollutant discharges, that will be produced through the application

of any given BMP or group of BMPs at a particular site.

 

* * * *

There are numerous variables associated with the design,

implementation, and effectiveness of a particular BMP or

group of BMPs at a particular site. Additionally, application

of these estimates is subject to substantial, site-specific

uncertainties. In some cases, despite appropriate design and

implementation of a BMP plan, there is the potential for

little improvement over baseline discharges. For these

reasons, it is not feasible to project the expected numeric

improvements that will occur for a specific pre-existing

discharge through application of a particular BMP plan.

 

67 Fed.Reg. 3379.

 

Having admitted the lack of predictable correlation between a proposed BMP and the performance of the BMP plan in reality, EPA has doomed a final rule that seeks to lower the sediment-management responsibility from the current effluent limitations to "background" yet has adopted an approach that can guarantee or demonstrate neither.

The final rule defines an arbitrarily overbroad category for which admittedly achievable effluent limits are jettisoned in favor of unproven, unenforceable BMPs. It is inconsistent with Sections 301 and 304 of the CWA, is irrational and must be rejected.

As earlier noted, agency action is arbitrary or capricious, within the meaning of 5 U.S.C. 706, if the agency has relied on factors which Congress has not intended it to consider, if the agency has offered an explanation for its decision that runs counter to the evidence before it, or if the agency’s explanation for its action is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Assn. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983). The Administrator has replaced effluent limits based for reclamation and other areas of western alkaline coal mines after 20 years of application of those standards, based not on the factors Congress identified in both SMCRA and the CWA as those to be considered in determining the appropriate level of pollutant limits, but on a new goal, flatly rejected by Congress, of approximating "natural" conditions. Despite the evidence in the record that sedimentation ponds meet existing effluent limits and that the limits can be attained by western coal mines, those effluent limits are swept aside as infeasible. Despite the acknowledgment that sedimentation ponds, one choice of technology to meet the new limits, do not always cause the "negative impacts" that the Administrator asserts sometimes occur (but for which little or no evidence has been provided), the Administrator has cut a wide swath through the regulation of all coal mines in arid and semi-arid areas in the west and has replaced specific, enforceable numeric effluent limits with "best management practices" that the Administrator acknowledges to be imprecise and incapable of predictive success. In furtherance of the impermissible goal of "natural conditions," the Administrator has selected a remedy, BMPs, that provide no assurance of compliance with even that new, lower, impermissible standard.

As much as the coal remining rule is a textbook example of an agency acting in a manner "inconsistent with law" under Step One of Chevron through repeated disregard of Congress's plain and precise words, the western alkaline mining subcategory and the weakened standards of responsibility allowed it under the final rule is quintessentially arbitrary and capricious under the State Farm standards and contrary to the CWA under Step One of Chevron.

CONCLUSION

 

For the reasons stated herein, KRC and CCC respectfully request the Court to (1) determine and declare that the Administrator's challenged regulations violate the CWA, (2) declare that the coal remining and western alkaline coal mining rule are arbitrary, capricious, an abuse of discretion, and otherwise inconsistent with law; (3) enjoin the Administrator and those acting under her authority from implementing the challenged rule; (4)

vacate the regulations; (5) award KRC and CCC its costs, disbursements, and reasonable attorney s' fees, and (6) grant such other relief as the Court deems just and appropriate and to which KRC and CCC may appear entitled.

Respectfully submitted,

_______________________

Thomas J. FitzGerald

KENTUCKY RESOURCES

COUNCIL, INC.

213 St. Clair Street Suite 200

Post Office Box 1070 Frankfort, Kentucky 40602-1070

Tel: (502) 875-2428

Fax: (502) 875-2845

 

Attorney for the Kentucky Resources Council, Inc. and Citizens Coal Council

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ADDENDUM OF STATUTES AND REGULATIONS

 

5 U.S.C. 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Clean Water Act (CWA):

 

Section 101, 33 U.S.C. 1251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 301(b)(2), 33 U.S.C. 1311(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 301(p), 33 U.S.C. 1311(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 301(p)(1), 33 U.S.C. 1311(p)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 301(p)(2), 33 U.S.C. 1311(p)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 301(p)(3)(A), 33 U.S.C. 1311(p)(3)(A) . . . . . . . . . . . . . . . . . . . . . . Section 301(p)(3) (B), 33 U.S.C. 1311(p)(3)(B) . . . . . . . . . . . . . . . . . . . . . .

Section 301(p)(4), 33 U.S.C. 1311(p)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 304(b), 33 U.S.C. 1314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 304(b)(1)(A), 33 U.S.C. 1314(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . .

Section 304(e), 33 U.S.C. 1314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 401, 33 U.S.C. 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 402, 33 U.S.C. 1342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 402(l)(2), 33 U.S.C. 1342(l)2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 402(p),33 U.S.C. 1342(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 502, 33 U.S.C. 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 502(11), 33 U.S.C. 1361(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 509(b), 33 U.S.C. Section 1369(b) . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 509(b)(1),33 U.S.C. 1369(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Surface Mining Control and Reclamation Act of 1977 (SMCRA):

Section 101, 30 U.S.C. 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 404; 30 U.S.C. 1234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 515, 30 U.S.C. 1265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

Section 515(b)(10), 30 U.S.C. 1265(b)(10) . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

CFR

 

40 CFR 122.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 CFR 122.44(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 CFR Part 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 CFR. 434.71(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 CFR 434.82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 CFR 434.83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF COMPLIANCE PURSUANT TO FED.R.APP.P. 32(a)(7)(C) AND CIRCUIT RULE 32(a)

 

 

Counsel for Petitioners Citizens Coal Council and Kentucky Resources Council, Inc. certifies the following:

Pursuant to Fed. R. App. P. 32 and Local Rule 32(a), the attached Brief for Petitioner was printed using a proportionally spaced 14 Times New Roman typeface and contains 13, 996 words (inclusive of footnotes), as counted by Word 2000.

 

 

November 15, 2002 __________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE

 

I hereby certify that a true and correct copy of the foregoing Proof Brief of Appellant was served this 15^th day of November, 2002 by first-class priority mail, postage prepaid, to Thomas H. Pacheco, U.S. Department of Justice, Environmental Defense Section, 301 Howard Street, Suite 1050, San Francisco, CA 94105, and to Sylvia Horwitz, Esq., Office of General Counsel, Environmental Protection Agency, 1200 Pennsylvania Avenue (2366A) Room 7514D Ariel Rios North, Washington, D.C. 20460 with a courtesy copy to EPA Administrator Christine T. Whitman, 1101A USEPA Headquarters, Ariel Rios Building, 1200 Pennsylvania Avenue N.W., Washington, D.C. 20460.

 

 

_________________________

Thomas J. FitzGerald

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 The date of promulgation was "expressly provided for in the promulgation." 40 C.F.R. Section 23.2.

2 The amendment provided that the effluent limitations would apply only to the "portion of the discharge from such operation which exceeds the discharge from the site of such operation immediately before the beginning of such operation." H.R. Rept. 98-827, at 64 (June 6, 1984).

3 The Congress adjourned without final enactment of the 1984 legislation. During the first session of the 99^th Congress (1985), the House again considered Clean Water Act reauthorization (H.R.8). Rep. Rahall discussed the remining provision when the House considered the bill. 131 Cong. Rec. H6038-9 (July 23, 1985). The following year, the House considered the House-Senate Conference Agreement on the bill, and Rep. Rahall again took note of the coal remining provisions. 132 Cong. Rec. H10934-5 (October 15, 1986). The President vetoed the bill, and at the beginning of the 100^th Congress (1987), the House promptly considered the legislation as H.R.1 on January 8, 1987, at which time Rep. Rahall again discussed the provision. 133 Cong. Rec. 186-7 (January 8, 1987). These pages from the Congressional Record, in addition to descriptions of the amendment in a Section-By-Section Analysis, 133 Cong. Rec. H137 (January 7, 1987) and H200 (January 8, 1987) comprise the legislative history behind the coal remining provision.

4 In the National Mining Association case, the Court rejected an effort by the Office of Surface Mining to expand the statutory language "owned or controlled" to include "owning and controlling." ("OSM points to the general rulemaking provisions of SMCRA . . . to justify its ownership and control rule. These provisions do not, however, permit OSM to trump Congress's specific statutory directive in section 510(c).")

5 The rule conflicts with Congressional intent in another manner as well. Representative Rahall explained in the 1985 floor debate that "new discharges created as a result of remining would not become preexisting discharges when the mine is re-permitted." 131 Cong Rec. H6039. By limiting eligible sites to pre-August 3, 1977, Congress avoided the problem of a post-SMCRA remining site being abandoned and then becoming eligible for lower standards if re-permitted. By eliminating the August 3, 1977 cutoff, EPA makes it possible for sites remined after 1977 and later abandoned or forfeited, to become eligible for lower permit limits – in direct violation of Congressional intent.

6 The Commonwealth of Kentucky noted in comments expressing concern with the approach finally adopted by EPA, that BMPs are not intended as a surrogate for point source controls and effluent limitations:

 

With regards for the substitution of BMPs for effluent limitations,

the application of BMPs are for the prevention of environmental degradation from sources which are not easily controlled through the application of point source requirements. BMPs can also be used as a supplement to a point source program, but they are not a stand-alone control device. As an example, the Division of Water requires the use of BMPs on all mining and remining sites as a supplement to the point source requirements. Kentucky has developed a BMP guidance document with recommended BMPs for use by the industry, however none of these BMPs have a documented reproducible correlation between the application of a BMP and a quantifiable improvement in water quality.

7 EPA explained that "[t]oday's rule makes it clear that the requirements of this subcategory apply only to pre-existing discharges that are not commingled with waste streams from active mining areas and that are not intercepted by active mining. It is not the intention of this rule or of the Rahall Amendment to provide alternative standards for active discharges that are generated by mining and remining operations." 67 Fed.Reg. 3378.

8 Representative Roe introduced the 1985 amendment as a provision allowing issuance of "a permit modifying effluent limitations . . . with respect to . . . pre-existing discharges . . . from the remined area of a coal remining operation." 131 Cong. Rec. H6025-03 (July 23, 1985).

9 SMCRA does direct mine operators to "minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas," but the suggestion that the maintenance of the "hydrologic balance" is the goal to which effluent limitations are to be directed is incorrect. If there are aspects of the control of pollutant contributions that may indirectly affect the "hydrologic balance," it is the responsibility of the mine operator and the regulatory authority under SMCRA to address those impacts through the mine permitting process, not the Administrator by eliminating effluent limits.

 

 

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