                                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                                            Pursuant to Sixth Circuit Rule 206
                                                    File Name: 04a0347p.06

                             UNITED STATES COURTS OF APPEALS
                                                FOR THE SIXTH CIRCUIT
                                                  _________________


 CITIZENS COAL COUNCIL and KENTUCKY RESOURCES               X
 COUNCIL , INC.,                                             -
                                              Petitioners, -
                                                             -   No. 02-3628
                                                             -
            v.                                                >
                                                             ,
                                                             -
 UNITED STATES ENVIRONMENT AL PROTECTION AGENCY , -
 and MIKE LEAVITT , in his capacity as Administrator of      -
 the ENVIRONMENT AL PROTECTION AGENCY ,                      -
                                             Respondent. -
                                                             -
                                                            N
                           On Petition for Review of a Final Decision of the
                                  Environmental Protection Agency.
                                      No. 40 CFR Parts 9 & 434.

                                                 Argued: January 29, 2004

                                          Decided and Filed: October 7, 2004

                 Before: SUHRHEINRICH and CLAY, Circuit Judges; GWIN, District Judge.*
                                                    _________________
                                                          COUNSEL
ARGUED: Thomas J. FitzGerald, Frankfort, Kentucky, for Petitioners. J. Steven Rogers, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRIEF: Thomas J.
FitzGerald, Frankfort, Kentucky, for Petitioners. Thomas H. Pacheco, UNITED STATES DEPARTMENT
OF JUSTICE, San Francisco, California, for Respondents.
       GWIN, D. J., delivered the opinion of the court, in which CLAY, J., joined. SUHRHEINRICH, J.
(pp. 15-18), delivered a separate opinion concurring in part and dissenting in part.
                                                    _________________
                                                        OPINION
                                                    _________________
        JAMES S. GWIN, District Judge. Here, a Kentucky nonprofit corporation (the Kentucky Resources
Council) and a national organization that advocates clean-living conditions for residents of the nation’s
coalfields (the Citizens Coal Council) petition this Court to invalidate a final rule that the Environmental


   *
       The H onorable James S. Gw in, United States District Judge for the Northern District of Ohio, sitting by designation.


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


Protection Agency promulgated on January 23, 2002 (“Final Rule”).1 We refer to the Kentucky Resources
Council and the Citizens Coal Council collectively as “Petitioners” and the Environmental Protection
Agency as “EPA.”
        The Final Rule applies to once-abandoned coal mines that operators later reopen and remine. In
addition, the Final Rule applies to coal mines in the arid regions of the Western interior states. Petitioners
argue that the EPA’s Final Rule exceeds its statutory mandate and urge this Court to strike it down.
       For the following reasons, we invalidate the regulations the EPA promulgated in the January 23,
2002 Final Rule, and remand.
                                                       BACKGROUND
        The Clean Water Act (“CWA”)2 is an enigmatical piece of legislation. Filled with more
sesquipedalian jargon than a year’s subscription to any trade journal and a byzantine system of cross
references, its intricacies are virtually indecipherable.3 Perhaps this explains the parties’ inability to agree
on seemingly any aspect of the statute or the EPA’s Final Rule. What follows is our attempt to navigate this
legislative labyrinth and to translate its environmentalese into English:
         The CWA seeks to restore and maintain the integrity of the nation’s water.4 To further the goals of
restoring and maintaining clean water, the CWA includes both technology-driven limits and water-quality-
based limits on pollution.5 The technology-based limits aim to prevent pollution by requiring polluters to
install and implement various forms of technology designed to reduce the pollution discharged into the
nation’s waters.6 On the other hand, the water quality regulations kick in once a given body of water’s
pollution level exceeds the level that a state deems acceptable for the body of water’s intended use or
function.7 They endeavor to cure an aquatic tragedy of the commons where the aggregate impact of
polluters’ activities–despite compliance with the technology-based regulations–causes unacceptable
pollution. When this happens, the water-quality-based regulations ratchet up the pollution control required
of individual polluters.8
        The technology-driven regulations are complex, and take the form of “effluent limitation guidelines.”
An “effluent limitation” is “any restriction [including schedules of compliance] established . . . on the
quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are

    1
      Pursuant to Fed. R. App. P. 43(c)(2), the Court has substituted Mike Leavitt for Christine Whitman, who was sued in her
official capacity.
    2
        33 U .S.C. § 125 1, et seq.
    3
      To illustrate the ridiculous number o f cross references, consider the following: CWA § 304(b)(4)(B) (codified at 33 U.S.C.
§ 1314(b )(4)(B)), refers readers to § 301(b)(2)(E ) (cod ified at 33 U .S.C. § 131 1(b)(2)(E )), which then refers read ers back to
§ 304(a)(4) (codified at 33 U.S.C. § 131 4(a)(4)). Readers must follow this circuitous path to discover merely that § 304(b)(4)(B)
pertains to “co nventional pollutants.”
    4
        33 U .S.C. § 125 1; see also B.P. Exploration & Oil v. EPA, 66 F.3d 784 , 789 (6th Cir. 1995).
    5
        See Nat. Res. Defense Council v. EPA, 915 F.2d 131 4, 13 17 (9th Cir. 1990).
    6
        Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923 , 927 (5th Cir. 1998).
    7
        Nat. Res. D efense Co unc il, 915 F.2d at 1317 (citing 33 U.S.C. §§ 1 312, 131 3).
    8
        Id.
No. 02-3628                       Citizens Coal Council, et al. v. EPA                                                         Page 3


discharged from point sources into . . . water[].”9 The CWA requires the EPA to issue effluent limitation
guidelines for various types of “point sources.” A “point source” is “any discernible, confined and discrete
conveyance . . . [such as a pipe, ditch, or channel] from which pollutants are or may be discharged.”10 The
EPA’s effluent limitation guidelines are technology-based regulations. They require polluters to adopt
certain technologies aimed at reducing pollution.
        Section 304 of the CWA charges the EPA with duties related to setting effluent limitation guidelines
for existing sources of pollution.11 Under § 304(b)(3), the EPA must identify the specific control measures
and practices available to the various categories and classes of point sources.12 The EPA must then identify,
in terms of the amount of pollutants, the pollution reduction (or, in Clean Water Act jargon, “effluent
reduction”) attainable through application of the three different levels of technology–best practicable control
technology (“BPT”),13 best available technology economically achievable (“BAT”),14 and best conventional
pollutant control technology (“BCT”).15 It must also identify the factors it will consider when deciding
which control measures and practices apply to each of the various classes and categories of point sources.16
        Beyond these §304 requirements, § 301 of the CWA requires that the effluent limitations attainable
by the various levels of technology “shall be achieved” by various dates, all at least fifteen years in the
past.17 More specifically, point sources discharging toxic and nonconventional pollutants must apply the
best available technology economically achievable (“BAT”) to meet the BAT effluent limitations.18
Similarly, point sources discharging conventional pollutants must apply the best conventional pollutant
control technology (“BCT”) to meet the BCT effluent limitations.19




    9
        33 U.S.C. § 13 62(11).
    10
         Id. at § 13 62(14).
    11
       For new sources of po llution, a sim ilar system of regulations applies. See id. at § 131 6. Bec ause Petitioners do not directly
challenge these “new source performance standards” (“NSPS”), discussing their regulations is beyond the scope of this opinion.


    12
         Id. at § 1314 (b)(3 ).
    13
         Id. at § 1314(b)(1)(A ).
    14
       Id. at § 1314(b)(2)(A). In this particular subsection, Congress used the term “best control measures and practices
achievable.” From the remainder of the statute, it appears that this provision is meant to read “best available technology
econom ically achievab le”–o r at least means the same thing. Both parties’ briefs reflect this interpre tation.
    15
         Id. at § 1314 (b)(4 )(A).
    16
         Id. at §§ 1314 (b)(1)(B); 1314(b )(2)(B); 1314(b)(4)(B ).
    17
        Id. at § 1311 (b). D ischargers with point sources requiring best practicable control technology were to achieve the goals
by July 1, 1977 . Id. at § 1311(b)(1)(A ). March 3 1, 19 89 w as the ap plicab le date for point sources requiring the best conventional
pollutant contro l technology, id. at § 1311 (b)(2 )(E), and b est available tec hnolo gy eco nom ically achievab le, id. at
§§ 1 311 (b)(2 )(C)– (D), (F).
    18
         Id. at § 1311 (b)(2 )(A).
    19
         Id. at § 1311(b)(2)(E ).
No. 02-3628                   Citizens Coal Council, et al. v. EPA                                                        Page 4


        These limitations, however, are not self-executing. Instead, they create binding obligations on
dischargers only through National Pollutant Discharge Elimination System (“NPDES”) permits.20 The CWA
forbids anyone from discharging any pollutant without an NPDES permit.21 The EPA Administrator may
issue permits to individual polluters only if the permitted discharges comply with the requirements for
effluent limitations set out in § 301 of the CWA.22 In issuing an NPDES permit, the EPA places the polluter
into the appropriate point source category and subcategory. The EPA next assigns the appropriate level of
technology to the polluter. Finally the EPA sets limits, for various pollutants, on how much the polluter may
discharge. In setting the limits in individual permits, the EPA imports standards from the effluent limitations
guidelines issued under CWA § 304(b). EPA then applies the numeric limitations to the discharger23 via
the NPDES permit.24 Thus, the technology-based effluent limitations become binding on polluters through
NPDES permits.
       To set the effluent limitation guidelines under CWA § 304(b), the EPA broke down the various point
sources by industry. The EPA established the Coal Mining Point Source Category as one of its industry
categories.25 In 1985, the EPA amended the effluent limitation guidelines and requirements concerning the
Coal Mining Point Source Category by creating four subcategories. They were:
          1)        Coal Preparation Plants and Coal Preparation Plant Associated Areas
          2)        Acid or Ferruginous Mine Drainage
          3)        Alkaline Mine Drainage
          4)        Post Mining Areas.26
In seeking an NPDES permit, each coal mining operation was placed into one of these four subcategories.
From then on, whenever a coal mining operation applied for an NPDES permit, the EPA incorporated the
effluent limitation guidelines corresponding to the appropriate subcategory for that operation.
        Under the 1985 regulations, these four subcategories did not include a category for coal mining
operations that sought to remine previously mined, but later-abandoned, lands (“remining operations” or
“reminers”). Technological advances made it feasible and potentially profitable to mine such lands.
However, the same regulations for miners of virgin lands applied also to coal reminers. Faced with a need
to bring remining operations into compliance with the same standards used for first-time mining, potential
reminers allowed abandoned mines to remain fallow, often with resulting untreated pollution from “pre-
existing discharges” that could otherwise have been treated. By using the same standards for both the


    20
         See, e.g., Am. Paper Inst., Inc. v. EPA, 996 F.2d 3 46, 350 (D .C. Cir. 1993).
    21
         33 U.S.C. § 13 11(a).
    22
         Id. at § 1342(a).
    23
        Und er the C W A, “disc harge” refers to any addition of any pollutant to navigable waters from any point source. 33 U.S.C.
§ 13 62(12) & (1 6). “D ischarger” and “po lluter” are therefore used interchangeab ly.
    24
       In addition to these technology-based regulations, the CWA also implements water-quality-based regulations. These latter
regulations are based upon the desired uses and condition of individual waterways. The water-quality-based requirements were
intended by Congress to supplement the effluent limitations. Through the water quality standards, EPA may place additional
obligations o n a po int sourc e to prevent the water from falling below ac ceptable standards.
    25
       See 40 C .F.R. § 434 .
    26
         50 F ed. R eg. 41 296 (1985).
No. 02-3628                Citizens Coal Council, et al. v. EPA                                                      Page 5


mining of virgin land and the remining of abandoned mines, the regulations imposed a large potential
liability for anyone who took over the land encompassing the abandoned mines.
       Responding to the disincentive for remining, Congress passed several amendments to the CWA in
1987, including one that West Virginia Representative Nick Rahall proposed. The “Rahall Amendment”
became § 301(p) of CWA.27
        With his amendment, Rep. Rahall sought to stimulate the remining of abandoned coal mines by
exempting certain remining operations from the otherwise-applicable national effluent limitations.28 Rather
than requiring remining operations to meet the national effluent limitation guidelines mandated by the 1985
amendments, the Rahall Amendment allowed the NPDES permit writer (the EPA Administrator or a
corresponding state administrator)29 to waive these requirements in favor of a modified permit. Under the
Rahall Amendment, modified permits incorporate site-specific numerical limits for pre-existing discharges
of iron, manganese, and pH based upon the Administrator’s “best professional judgment.” However, the
Rahall Amendment forbade the EPA (or state) Administrator to issue a permit if remining would cause
discharges that exceeded the pre-existing levels of pollutants found in surrounding waterways.30 The Rahall
Amendment also required that applicants for these “Rahall permits” provide evidence that the remining
operations would potentially improve the quality of the water in the area, and that the permits comply with
applicable state water quality standards.
       The Rahall Amendment sought to make remining economically feasible. Congress believed that
remining would improve the water quality of abandoned mines, an improvement that would not have
occurred under the more stringent guidelines that applied to all mined lands.
                                                EPA’S FINAL RULE
        The challenged EPA Final Rule creates two new subcategories under the Coal Mining Point Source
Category and sets regulations for both. These new subcategories are (1) the Coal Remining Subcategory,
and (2) the Western Alkaline Coal Mining Subcategory. We discuss them in turn.
                                            Coal Remining Subcategory
         The Final Rule creates a first new subcategory known as the Coal Remining Subcategory. The
regulations for this subcategory apply to all “pre-existing discharges” at “coal remining operations.” “Pre-
existing discharges” are “any discharge[s] resulting from mining activities that have been abandoned prior
to the time of a remining permit application.”31 A coal remining operation is “a coal mining operation at
a site on which coal mining was previously conducted and where the site has been abandoned or the
performance bond has been forfeited.”32
       The regulations require that every remining operator create a site-specific Pollution Abatement Plan
and submit it to the EPA or the state agency with authority to issue NPDES permits.33 Remining operators
must include in their Pollution Abatement Plans “best management practices,” and they must design the


    27
       33 U.S.C. § 13 11(p).
    28
       For the purposes of the Rahall Amendment, a remining operation is one that commenced after February 4, 198 7 at a site
where coal mining had ceased before August 3, 1977. 33 U .S.C. § 1311(p)(3)(A).
    29
       In jurisdictions where E PA has authorized a state agency to administer the NPDE S program, state agencies may issue
NP DE S permits. See 33 U.S.C. § 13 42(a)–(d).
    30
       33 U.S.C. § 13 11(p)(2).
    31
       40 C .F.R. § 434 .70(b) (2004 ).
    32
       Id. at § 434.70(a).
    33
       Id. at § 434.7 2(a).
No. 02-3628                  Citizens Coal Council, et al. v. EPA                                                           Page 6


plans “to reduce the pollution load from pre-existing discharges[.]”34 Further, each Pollution Abatement
Plan “must describe the design specifications, construction specifications, maintenance schedules, criteria
for monitoring and inspection, and expected performance of [best management practices].”35 Under the
Final Rule, these Pollution Abatement Plans qualify as the best practicable control technology currently
available (BPT),36 the best achievable technology economically achievable (BAT),37 and the best
conventional pollutant control technology (BCT) for remining operators.38
        The Final Rule also sets effluent limitations for four pollutants–total iron, total manganese, net
acidity, and total suspended solids (“TSS”). For each pollutant, the required effluent limitation is that the
discharger “[m]ay not exceed baseline loadings[.]”39 Baseline loadings are background conditions--i.e.,
those that exist when remining commences. The Final Rule defines the procedures for measuring them.40
However, if the EPA or the state permitting authority concludes that collecting samples to measure baseline
pollutant loadings is infeasible41 and that remining “will result in significant improvement that would not
otherwise occur,” then no measurable effluent limitations apply. 42 The permitting authority apparently has
unfettered discretion in making such determinations. These regulations apply to all three levels of
technology.43
                                    Western Alkaline Coal Mining Subcategory
        The EPA’s Final Rule also creates, and establishes effluent limitations for, the Western Alkaline
Coal Mining Subcategory. The Final Rule regulates certain types of drainage in certain areas of “western
coal mining operations.”44 “Western coal mining operations” are “surface or underground coal mining
operation[s] located in the interior western United States, west of the 100th meridian west longitude, in an
arid or semiarid environment with an average annual precipitation of 26.0 inches or less.”45
       EPA’s Final Rule sets no uniform standards for drainage at western coal mining operations. Instead,
western alkaline coal mining operators must create “a site-specific Sediment Control Plan . . . designed to
prevent an increase in the average annual sediment yield form pre-mined undisturbed conditions.”46 Like
the Pollution Abatement Plans described above, each Sediment Control Plan “must identify best

    34
         Id.
    35
         Id.
    36
         Id. at § 434.7 2.
    37
         Id. at § 434.73.
    38
         Id. at § 434.7 4.
    39
         Id. at 434.72 (b)(1 ).
    40
         See id at § 434 App. B.
    41
         The Final Rule provides several examples of when such measurement would be infeasible:
     Pre-existing discharges for which it is infeasible to collect samples for determination of baseline pollutant levels include,
     but are not limited to, discharges that exist as a diffuse groundwater flow that cannot be assessed via sample collection;
     a base flow to a receiving stream that cannot be monitored separate from the receiving stream; a discharge on a steep
     or hazardous slop e that is inaccessible for sam ple collection; or, a number o f pre-existing discharges so extensive that
     monitoring of individual discharges is infeasible.
Id. at § 434.72(b)(2).
     42
         Id. at § 434.7 2(b)(2).
     43
         Id. at §§ 434.72, 434.73, & 434.74.
     44
         Id. at § 434.81. More specifically, the Rule’s regulations apply to “alkaline mine drainage,” id. at § 434.8 1(a), and to
drainage with (1) pH equal to or greater than 6.0, (2) dissolved iron concentration less than 10 mg/L, and (3) net alkalinity greater
than ze ro, id. at § 434.8 1(b).
     Further, the regulation applies only to reclamation areas, brushing and grubbing areas, topsoil stockpiling areas, and regraded
areas. Id. at § 434.82. These different areas are all defined in 40 C.F.R. § 434.80 ; the definitions are beyond the scope of our
analysis.
     45
        Id. at § 434.80(f).
     46
         Id. at § 434.8 2(a).
No. 02-3628                 Citizens Coal Council, et al. v. EPA                                        Page 7


management practices (BMPs) and also must describe design specifications, construction specifications,
maintenance schedules, criteria for inspection, as well as expected performance and longevity of the best
management practices.”47 Sediment Control Plans need not include numerical limitations on sediment.
Instead, Operators must demonstrate “[u]sing watershed models” that the Sediment Control Plans “will
result in average annual sediment yields that will not be greater than the sediment yield levels from pre-
mined, undisturbed conditions.”48 Beyond that, the operators’ only obligation is to implement and maintain
the best management practices described in the Sediment Control Plan.49 These requirements constitute
BPT,50 BAT,51 and BCT.52
                                               STANDARD OF REVIEW
       Petitioners challenge an EPA rule promulgated through informal rulemaking. Therefore, we review
the Final Rule under the Administrative Procedure Act (“APA”).53 Under the APA, we invalidate an
informal rule if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;”
“in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” or “without
observance of procedure required by law.”54
        An agency rule is arbitrary and capricious “if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.”55 Further, an agency
abuses its discretion when it fails to consider a factor the statute directs it to consider in promulgating
regulations.56 The Court must undertake a “searching and careful review” to determine whether an agency
action was arbitrary and capricious, but “the ultimate standard of review is a narrow one.”57
        This standard directs courts to grant substantial deference to administrative agencies. The Court may
not substitute its own judgment for that of the agency. Instead, the Court must decide whether a rational
relationship exists between the statute’s purposes and the agency’s action and whether “there is substantial
evidence in the record to support it.”58 Further, the agency’s decision “is entitled to a presumption of
regularity.”59 With this standard in mind, we turn to Petitioners’ challenges to the Final Rule.
                                               PARTIES’ ARGUMENTS
       Petitioners attack the Final Rule on several fronts. Regarding the Coal Remining Subcategory, they
argue that it is inconsistent with CWA § 301(p), the Rahall Amendment. Petitioners claim four
inconsistencies. First, they argue that the definition of “coal remining operation” in the Final Rule differs
from the Rahall Amendment’s definition of that term. Second, Petitioners say, the Final Rule adds total
suspended solids (“TSS”) to the list of pollutants that are to receive relaxed standards. While the Rahall


   47
        Id.
   48
        Id. at § 434.82(b).
   49
        Id. at § 434.8 2(c).
   50
        Id. at § 434.82.
   51
        Id. at § 434.83.
   52
        Id. at § 434.84.
   53
        5 U.S.C. § 551 , et seq.
   54
        Id. at §§ 706(2)(A ), (C)–(D).
   55
        Mo tor Vehicle Mfrs. A ss’n v. S tate Farm Mu t. Auto Ins. Co., 463 U .S. 29, 43 (1983).
   56
        Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923 , 934 (5th Cir. 1998).
   57
        Citizens to Preserve Overton Park, In c. v. Vo lpe, 401 U .S. 402, 416 (197 1).
   58
        Mercy Hosp. of Laredo v. Heckler, 777 F.2d 102 8, 10 31 (5th Cir. 1985).
   59
        Chem. Mfrs. Ass’n v. EPA, 870 F.2d 177 , 198 (5th C ir. 198 9).
No. 02-3628                  Citizens Coal Council, et al. v. EPA                                                           Page 8


Amendment relaxes standards for only pH, manganese, and iron, the Final Rule includes TSS. Third,
Petitioners argue that the Final Rule’s lack of numerical limits on effluents runs afoul of the Rahall
Amendment’s requirement of numerical limits. Finally, Petitioners argue that the Final Rule differs from
the Rahall Amendment by applying the otherwise-applicable standards (rather than modified standards) to
pre-existing discharges that reminers commingle with discharges from active mining operations. According
to Petitioners, the EPA should regulate these discharges under the relaxed Rahall Amendment standards.
For these reasons, Petitioners argue that the Final Rule is inconsistent with the text, and also the purpose,
of the Rahall Amendment.
        Concerning the Western Alkaline Coal Mining Subcategory, the Petitioners offer four arguments for
their challenge. First, they argue that best management practices are not appropriate effluent limitation
guidelines because they do not impose numeric limitations on pollution. Second, they argue that the
Administrator has not shown that continued imposition of the currently applicable effluent limitations is
infeasible. Third, they argue that the entire subcategory of Western Alkaline Coal Miners is irrational and
overbroad. Finally, Petitioners argue that the EPA’s goal in creating the subcategory is inconsistent with
the CWA and the Surface Mining Control & Reclamation Act (“SMCRA”).
        The EPA defends the Final Rule, both subcategories, and its regulations applicable to them. In
general, the EPA says that the Rahall Amendment does not constrain the EPA’s power to issue generally
applicable regulations. Further, the EPA argues that requiring “best management practices” as the only
effluent limitations for the Coal Remining Subcategory is a reasonable exercise of the EPA’s discretion
under the CWA. Finally, the EPA argues that we must affirm its rule applying the more strict, otherwise-
applicable regulations (as opposed to weakened alternative regulations) to commingled waste streams
because the EPA relied on an existing regulation in promulgating it.
        The EPA defends the Western Alkaline Coal Mining Subcategory with several arguments. First, it
repeats its argument that non-numeric effluent limitations are acceptable under the CWA. Next, with regard
to western alkaline coal mines, the EPA argues that numeric limitations are infeasible. The EPA bases this
argument upon its scientific conclusion that sedimentation ponds cause serious, adverse non-water-quality
impacts in the arid West, and upon the assumption that using sedimentation ponds is necessary for a miner
to comply with the numerical limitations. Third, the EPA argues that its scientific conclusions support the
decision to create the subcategory, and this decision was not arbitrary, capricious, or unreasonable. Finally,
the EPA argues that setting effluent limits at premined background levels is consistent with both the CWA
and the SMCRA.
                                                          ANALYSIS
        We enter this analysis with caution. Most challenges to administrative agency action involve an
agency’s construction of a single word or phrase in its enabling statute. In contrast, we here examine an
agency’s construction of the statute (more or less) as a whole. Instead of relying upon a single section or
subsection of CWA as its authority to promulgate the Final Rule, the EPA references no fewer than seven
sections.60 In reviewing the EPA’s Final Rule, we must therefore look to each of these seven sections, all
of their subsections, and all of the cross-referenced sections within to determine the scope of the EPA’s
power.




    60
        See 67 Fed. Reg. 3371 (Jan. 23, 2002) (labeling CWA §§ 301 , 304 , 306 , 308 , 402 , 501 , and 5 02 as EP A’s legal authority
for the Final Rule).
No. 02-3628                 Citizens Coal Council, et al. v. EPA                                                        Page 9


                                            I. Coal Remining Subcategory
                                                              A.
         We first decide whether CWA § 304 grants to the EPA the power to create a subcategory under the
Coal Mining Point Source Category and to promulgate regulations that conflict with the Rahall Amendment
for that subcategory. The Petitioners argue that the CWA does not, and that the Final Rule must be stricken
down for this reason. The EPA, however, contends that it had power to create regulations for remining
under the CWA even where such regulations conflict with the Rahall Amendment.
        We review an agency’s construction of its enabling statute under the two-step test articulated by the
Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council.61 First, we ask whether Congress
has spoken directly to the specific issue at hand.62 If it has, we must give effect to Congress’ clearly
expressed intent. However, if the statute is ambiguous, we move to the second step, which calls for broad
deference to the administrative agency. In the second step, we may invalidate an agency action only if it
relies on an impermissible construction of the statute.63
        Applying the Chevron standard, we conclude that the CWA does not explicitly address whether the
EPA has the power to create a subcategory under the Coal Mining Point Source Category and to promulgate
regulations for that subcategory that conflict with the Rahall Amendment. CWA § 304(b) provides the EPA
with a general authority (indeed, a duty) to create regulations (“effluent limitation guidelines”) for various
classes and categories of point sources. It does not address the Rahall Amendment’s relationship to these
regulations. Further, the Rahall Amendment is silent on the issue of the Administrator’s power to create
additional subcategories under the Coal Mining Point Source Category. We must therefore move on to the
second prong of Chevron–whether the agency’s interpretation of the statute is reasonable.
        Generally, when an agency issues a rule that contradicts the enabling statute, the rule is “in excess
of statutory jurisdiction,” and therefore violates the APA. This case presents an exception to that rule
because the Rahall Amendment does not define or even limit the EPA’s authority to issue generally
applicable regulations. Instead, the Rahall Amendment merely provides a way for coal reminers to opt out
of generally applicable effluent limitation regulations and to obtain permits that include modified effluent
limitations. The Rahall Amendment is wholly silent regarding the EPA’s authority to promulgate
implementing regulations that go beyond its provisions.64
        CWA § 304(b) requires the EPA to issue effluent limitations for various pollutants and for various
levels of technology. CWA § 402(a) further directs the EPA Administrator to incorporate these regulations
into NPDES permits issued to individual polluters. The Rahall Amendment gives reminers an alternative
to the generally applicable effluent limitation regulations. Under the Rahall Amendment, the Administrator
(or other NPDES-permit-issuing authority) may issue a modified permit. The Rahall Amendment thus does
not create a particular regulatory scheme that applies to all coal remining operations. On the contrary, it
creates an avenue for reminers to opt out of the generally applicable regulations.
        The Clean Water Act’s text and structure support this interpretation of the statute. First, CWA
§ 304(b) directs the EPA to issue generally applicable guidelines. Second, these guidelines gain the force
of law through CWA § 301(b). Third, they create obligations on polluters through NPDES permits. The

    61
       467 U .S. 837 (1984 ).
    62
       Id. at 842.
    63
       Id. at 843.
    64
       For this reason, the EPA’s arguments that it enacted the Final Rule in part to implement the Rahall Amendment are without
merit. The Rahall Amendment authorizes EPA to mo dify the effluent limitation guidelines in individua l perm its; it does not
authorize the EPA to issue generally applicable rules pertaining to coal remining. Any such rules and regulations must come under
the EPA ’s general autho rity to issue effluent limitation guidelines under C W A § 3 04(b).
No. 02-3628                  Citizens Coal Council, et al. v. EPA                                                           Page 10


Rahall Amendment says that the Administrator “may issue a permit . . . which modifies the [generally
applicable effluent limitations]”65 for pre-existing discharge in various areas of a coal remining operation.
In no way does the Rahall Amendment require coal remining operators to seek such modified permits.
Instead, remining operators remain able to seek permits under the generally applicable effluent limitation
guidelines that the EPA promulgated under CWA § 304(b). Such permissive language conflicts with
Petitioners’ argument that the Rahall Amendment creates a generally applicable regulatory scheme, with
which EPA’s § 304(b) regulations must remain consistent. To the contrary, the § 304(b) regulations precede
(both temporally and logically) any application of the Rahall Amendment. In these ways, the Rahall
Amendment does not create a generally applicable scheme of regulating remining operators , binding on all
such operators. Instead, it creates a way for remining operations to avoid the generally applicable EPA
regulations issued under § 304(b).
       Here, the EPA promulgated a rule that created new generally applicable regulations for coal reminers.
These regulations parallel the Rahall Amendment in some respects and run contrary to the Rahall
Amendment in others. Because the text and structure of the Clean Water Act compel the conclusion that
the Rahall Amendment is an opt-out, rather than a generally applicable regulatory scheme, these
inconsistencies with the Rahall Amendment do not put the Final Rule in tension with the statute. Instead,
the new Final Rule provides a new set of generally applicable regulations (applicable to all remining
operators ), from which remining operators are still free to opt out via the Rahall Amendment’s alternative
procedures.66
        For these reasons, the EPA’s reading of the Clean Water Act, allowing it to promulgate regulations
for the Coal Remining Subcategory, is reasonable. Having concluded that the EPA has the authority to issue
regulations of this type, we now turn to the validity of the individual regulations.
                                                                 B.
       Even though the EPA’s conclusion that it may issue regulations that differ from the Rahall
Amendment is reasonable, the EPA’s Coal Remining Subcategory regulations cannot stand because they
are “without observance of procedure required by law.”67
        The CWA contemplates a five-step process of creating and implementing effluent limitations. First,
the EPA must identify which control measures and practices are available to the various categories and
classes of point sources.68 Second, the EPA identifies the factors that it will take into account when
deciding which of these control measures and practices apply to point sources within the various categories
and classes.69 It must do so for the three levels of technology described in the statute–BPT,70 BAT,71 and


    65
       33 U .S.C. § 131 1(p)(1) (e mph asis added ).
    66
        Petitioners also argue that the Final Rule must be stricken down because its definition of “remining operation” differs from
that contained in the Ra hall Am endment. Compa re 33 U.S.C. § 13 11(p)(3)(A) (defining a coal remining operation as “a coal
mining operation which b egins after Feb ruary 4, 198 7, at a site on which coal mining was conducted before August 3, 1977”),
with 40 C.F.R. § 434.70(a) (defining a coal remining operation as “a coal mining operation at a site on which coal mining was
previously co nduc ted and whe re the site has been ab andoned or the performance bond has been forfeited ”).
      According to Petitioners, this conflict renders EPA’s action inconsistent with the statute, and therefore invalid. Petitioners
are mistaken. The definitions contained within the Rahall Amendment pertain only to the Rahall Amendment, as CWA §
301(p)(3) indicates by limiting the reach of its definitions to the “purpo ses of this subsection[.]” 33 U.S.C. § 131 1(p)(3 ). Because
EPA issued its Final Rule und er its § 304(b) authority, it is not constrained b y the definitions that apply only within the context
of CW A § 3 01(p).
     67
        5 U.S.C. § 706 (2)(D).
     68
        33 U .S.C. § 131 4(b)(3).
     69
        Id. at §§ 131 4(b)(1)(B ), 131 4(b)(2)(B ), & 1314 (b)(4 )(B).
     70
        Id. at § 1314(b)(1)(B ).
     71
        Id. at § 1314(b)(2)(B ).
No. 02-3628                 Citizens Coal Council, et al. v. EPA                                                       Page 11


BCT.72 Third, the EPA must determine, “in terms of amounts of . . . pollutants, the degree of effluent
reduction attainable through the application of” the three technological levels.73 These three steps each
occur under CWA § 304(b).
        Fourth, these guidelines gain the force of law under CWA § 301(b), which states that compliance
with the guidelines created under § 304 “shall be achieved” by certain dates.74 Finally, the EPA must
incorporate the guideline limitations into NPDES permits given to individual polluters.75 At this step,
compliance with the requirements becomes mandatory for individual dischargers, as CWA § 402(a)
establishes that compliance with § 301 is a prerequisite to issuance of a permit.76
        Under the statute, the EPA should have first identified the technological tools available to coal
reminers and then determined the amount of effluent reduction attainable. Instead, the EPA started the
regulation process by defining the level of pollution the agency desired (maintaining “baseline loadings”)
and then worked backward to define the technological tools as site-specific “plans” that would achieve the
desired level of pollution. This is problematic not only because it is backwards–the EPA defines the
pollution control technologies in terms of the desired outcome, rather than defining required outcomes in
terms of that which the available technology can achieve–but more importantly because it shirks the EPA’s
duty under CWA § 304(b) to determine the degree of effluent reduction attainable. Essentially, the EPA’s
Final Rule defines the attainable reduction at zero, without ever exploring the prospect of accomplishing
more.
          In some circumstances, such as when the levels of pollution have fallen so low as to reach fully the
technological controls’ capabilities, the degree of effluent limitation attainable might actually be zero.
However, setting the attainable effluent limitation at zero is arbitrary and capricious when the EPA
effectively defines the available levels of technology as those that will result in no increase of pollution,
without any requirement that the limitations actually reduce pollution. Such circular reasoning contravenes
“the national goal of eliminating the discharge of all pollutants” expressed in CWA § 301(b)(2)(A).77 It
further contravenes the EPA’s duties under CWA §§ 304(b)(1)(A), (b)(2)(A), and (b)(4)(A) to “determine
. . . the degree of effluent reduction attainable” for the various levels of technology, and to do so “in terms
of amounts of constituents.”78 We hold that where the EPA fails to determine how much reduction in
pollution is possible, and to do so by reference to the amounts of pollutants, the EPA deviates from CWA’s
statutory commands.
        The EPA’s decision to use background conditions as effluent limits is also problematic because it
results in a different effluent limitation for each site. Such a “keep it as it is” approach does not even
approximate needed uniformity in the regulations. While the CWA does not mandate strict uniformity, 79
courts have recognized that the CWA disallows plant-by-plant regulations. In Texas Oil & Gas Association
v. EPA, the Fifth Circuit held that the CWA does not require the EPA to maintain absolute uniformity among
effluent limitations within a single category or subcategory of point sources.80 However, the court also
noted “the textual mandate of the CWA that [effluent limitation guidelines] be established for ‘categories


    72
        Id. at § 1314 (b)(4 )(B).
    73
        Id. at §§ 131 4(b)(1)(A ), 131 4(b)(2)(A ), & 1314 (b)(4 )(A).
    74
        Id. at § 1311 (b).
    75
        Id. at § 1342 (a)(1).
    76
        Id.
    77
        Id. at § 1311(b)(2)(A ).
    78
        Id. at §§ 131 4(b)(1)(A ), 134 1(b)(2)(A ), & 1314 (b)(4 )(A) (both emp hases a dde d).
    79
        Consider, for example, the Rahall Amendment, which allows the NPDES permit issuer to mo dify the otherwise-applicable
limitations for certain coal reminers. Id. at § 1311(p). Additionally, if “fundamentally different factors” apply to a particular
discharger, the Ad ministrato r may grant a va riance on the basis of those d ifference s. Id. at § 1311(n).
     80
        161 F.3d 923 , 937 -38 (5 th Cir. 19 98).
No. 02-3628                  Citizens Coal Council, et al. v. EPA                                                             Page 12


and classes’ rather than individual point sources,”81 and “agree[d] that Congress intended to foreclose plant-
by-plant evaluation of facilities within a subcategory.”82 The EPA’s decision to set effluent limitations
through sole reliance upon site-specific factors thus runs afoul of this policy against site-specific regulations.
        For the above reasons, we conclude that setting background conditions as effluent limitations violates
the text of CWA and thus relies on an unreasonable reading of the statute.83 Therefore, we strike down the
regulations setting effluent limitations for the Coal Remining Subcategory. 84
                                                                 C.
       An additional problem with the EPA’s Final Rule lies in the EPA’s failure to consider all the factors
the CWA requires it to consider. Subsections 304(b)(1)(B), (b)(2)(B), and (b)(4)(B) require the EPA to
consider a list of factors when establishing which control measures shall become BPT, BAT, and BCT.85
These factors are
         the age of equipment and facilities involved, the process employed, the engineering aspects
         of the application of various types of control techniques, process changes, non-water quality
         environmental impact (including energy requirements), and other such factors as the
         Administrator deems appropriate.86
Although the EPA has broad discretion in determining the amount of weight to assign to each factor,87 it
may not ignore a factor altogether.88
        The record in this case provides no evidence that the EPA took each of these factors into account
when prescribing the pollution control measures that became part of the various technological levels for the
two new subcategories. The EPA’s Proposed Rule89 goes so far as to list the factors in its discussion of BPT
for the Coal Remining Subcategory,90 yet it contains no evidence that the EPA actually considered them.
For instance, the Proposed Rule contains no discussion or even information on the age of the equipment and

    81
       Id. at 938.
    82
       Id. at 939.
    83
         W e reserve jud gment on the EPA’s argume nt that it is reasonab le to dub “best management practices” as effluent
limitations. The EP A spent a considerable portion of its brief making this argument, which basically parrots the above-described
argum ent that effluent limitations need not be nume ric.
     W e note, however, that the EPA’s own regulation renders this argument a red herring. The EP A lists best management
practices in 40 C.F.R. § 434.72(a), which describes the controls constituting the best practicable technology (BPT ). However,
§ 434.72(b)(1 )–the subsection that sets out the applicable effluent limitations–contains nary a reference to best management
practices. Instead , subsection (b )(1) lists the effluent limitation as “May not exceed baseline loadings[.]” 40 C.F.R.
§ 434.72 (b)(1).
     Further, while it may be permissible to estab lish best m anagement prac tices as an effluent limitation, the C W A hints tha t this
limitation unacc omp anied by a numeric guideline migh t run afoul of the statute. CW A § 3 04(b) req uires the EP A to “p ublish . . .
regulations, providing guidelines for effluent limitations.” 33 U.S.C. § 1314(b). T he statute thus contemplates that the E PA ’s
guidelines (and therefore the regulations that contain them) will contain something beyond a mere recitation of the effluent
limitations the EP A has chosen. Further, CW A § 3 04(e) permits the EP A to p ublish best management practices that are
“supplemental to any effluent limitations.” Id. at § 1314(e). This provision strongly hints that the drafters of the CW A envisioned
best management practices as being different from effluent limitations, rather than a type of effluent limitation.
     84
        40 C.F.R. §§ 434.72–434.75.
     85
        33 U .S.C. § 131 4(b)(1)(B ), (b)(2 )(B), & (b )(4)(B ).
     86
        Id. at § 1314(b)(1)(B) & (b)(4)(B). Subsection § 304(b)(2)(B) contains all of the above, and also lists “the cost of
achieving such effluent reduction” after “process changes.” 33 U.S.C. § 131 4(b)(2)(B)
     87
        Texas O il & Gas Ass’n v. EPA, 161 F.3d 92 3, 928 (5th Cir. 1998) (citing Nat. Res. Defense Council v. EPA, 863 F.2d
1420, 14 26 (9th Cir. 1988)).
     88
        Id. at 934 (holding that an agency abuses its discretion when it ignores a statutory factor).
     89
        65 F ed. R eg. 19 440 (Apr. 11, 2 000 ).
     90
        Id. at 19450-51.
No. 02-3628                 Citizens Coal Council, et al. v. EPA                                                       Page 13


facilities or of “the engineering aspects of the application of various types of control techniques.” The
discussions of BCT, BAT, and NSPS do not even list the factors.91 The Final Rule fares no better.92
        Therefore, from the record before us, we cannot conclude that the EPA followed Congress’ statutory
directives in determining the appropriate pollution controls to assign to point sources in the new
subcategories. For this reason, we must further strike down the EPA’s decision to set Pollution Abatement
Plans featuring best management practices as BPT, BCT, and BAT for the Coal Remining Subcategory.
                                                              D.
        The final issue we decide with regard to the Coal Remining Subcategory is whether the EPA may
apply different standards to pre-existing discharges that have been commingled with wastes from active
mining operations. Under the Final Rule, the EPA applies a lower standard for cleanup of pre-existing
discharge at remining operations. However, for pre-existing discharge that became intertwined with wastes
from active mining operations, the higher standard applicable to waste from active mining operations
applies.93 Petitioners challenge this regulation as too demanding. The EPA defends its decision to apply
alternative standards to waste streams that have been commingled by arguing that it merely applied an
existing regulation to the new context of coal reminers.
         Petitioners argue that the Rahall Amendment prohibits the EPA from applying the stricter standards
of the generally applicable § 304(b) regulations to pre-existing discharges that have commingled with other
waste streams. As described previously, this argument is incorrect. Again, the Rahall Amendment functions
only as an opt-out, not as a mandatory, generally applicable regulatory scheme. The Rahall Amendment
therefore does not prohibit the EPA from applying its general commingling rule94 to commingling of pre-
existing discharges. Nor does any other provision of the CWA so prohibit. For these reasons, we grant the
EPA the deference due to it in construing its own regulations, and conclude that the EPA may apply its
commingling rule to pre-existing discharges.
                                 II. Western Alkaline Coal Mining Subcategory
        Petitioners also mount several arguments against the second new subcategory created by the Final
Rule--the Western Alkaline Coal Mining Subcategory. First, they repeat their argument that the EPA lacks
authority to impose non-numeric effluent limitation guidelines. Next, they say that even if the EPA had such
authority, the decision to do so here was arbitrary, capricious, and inconsistent with the goals of the CWA
and the SMCRA.
        The regulations for the Western Alkaline Coal Mining Subcategory contain no numeric effluent
limitations for total suspended solids, and no effluent limitations at all for settleable solids and pH. Under
the regulations, each operator “must submit a site-specific Sediment Control Plan . . . designed to prevent
an increase in the average annual sediment yield from pre-mined, undisturbed conditions.”95 Like the
Pollution Abatement Plans applicable to the Coal Remining Subcategory, these Sediment Control Plans are


    91
       See id. at 19452.
    92
       See 67 Fed. Reg. 33 70–34 10 (Jan. 23, 2002 ).
    93
       40 C.F.R. § 434 .71(b).
    94
       40 C.F.R. § 43 4.61 states:
    W here waste streams from any facility covered by this part are combined for treatment or discharge with waste streams
    from another facility covered by this part, the concentration of each pollutant in the combined discharge may not exceed
    the most stringent limitations for that pollutant applicable to any component waste stream of the discharge.
This provision is not specific to the Coal Remining Subcategory; it applies to all subcategories in the Coal M ining Point Source
Category.
    95
       Id. at §434.8 2(a).
No. 02-3628                 Citizens Coal Council, et al. v. EPA                                     Page 14


to feature best management practices.96 Additionally, operators must demonstrate the plans’ effectiveness
“[u]sing watershed models.”97 These Sediment Control Plans constitute the only effluent limitation required
for all three levels of technology,98 and they contain no numeric limits on sediment whatsoever. Beyond
the initial models there are no measurable checks on sediment levels at all.
        The same reasoning detailed above in Parts I.B. and I.C. applies equally to the non-numeric
limitations in the Western Alkaline Coal Mining Subcategory. By adopting non-numeric effluent limitations
based upon background conditions, the EPA shirked its duties under CWA § 304(b) to determine in terms
of the amounts of pollutants, the degree of effluent reduction attainable by the various levels of technology.
Additionally, the EPA abused its discretion by failing to consider the factors spelled out in CWA
§§ 304(b)(1)(B), (b)(2)(B), and (b)(4)(B) when deciding which control measures would become BPT, BAT,
and BCT. For these reasons, we strike down the regulations implementing the Western Alkaline Coal
Mining Subcategory.
                                                      CONCLUSION
        For the reasons described above, we invalidate the regulations contained in the EPA’s Final Rule.
We therefore REMAND this matter to the EPA with instructions to either withdraw the Final Rule or to
issue a new rule, and to ensure that the provisions of which are consistent with this opinion.




   96
      Id.
   97
      Id. at § 434.82(b).
   98
      See id. at § 434.8 2 (B PT ); § 43 4.83 (BA T); § 43 4.84 (BC T).
No. 02-3628             Citizens Coal Council, et al. v. EPA                                            Page 15


                          _____________________________________________

                          CONCURRING IN PART, DISSENTING IN PART
                          _____________________________________________
        SUHRHEINRICH, Circuit Judge, concurring in part, and dissenting in part. I concur in Part I.A. of
the majority opinion. I agree that the EPA has reasonably interpreted the Clean Water Act with respect to
its authority to regulate. The opt out measures allowed by the Rahall Amendment do not limit the EPA’s
authority to create and regulate subcategories such as the Coal Remining Subcategory and the Western
Alkaline Coal Mining Subcategory.
        The majority nevertheless strikes down the regulations that the EPA promulgated for these new
subcategories. The majority holds that these regulations were not made in observance of procedure required
by law because the EPA failed to follow the steps set forth in the Act. See supra Part I.B. The majority also
holds that the EPA did not weigh the required statutory factors prior to regulating as it did. See supra Part
I.C. The majority applies these holdings to the regulations for both subcategories. See supra Part II. I write
separately because I disagree with the majority’s analysis on these points.
        As to the majority’s holding that these regulations were not made in observance of procedure
required by law because the EPA failed to follow the “steps” set forth in the Act, I must note that Petitioners
did not even argue that these regulations were not made in observance of procedure required by law, much
less that the EPA failed to follow the steps created by the majority. Petitioners have argued only that the
regulations are arbitrary and capricious. See Brief of Petitioners, pp. 21, 23, 51, 53-54, 63, 65; Reply Brief
of Petitioners, pp. 24, 27, 29.
        In any event, I fail to see any statutory language requiring the EPA to follow a five-step process when
promulgating effluent limitation guidelines, much less to take the steps in the order contemplated by the
majority. There is no sequential language in these provisions, i.e., words such as “first,” “then,” “next,”
“before,” or “after.” This statute merely requires the EPA to do certain things when promulgating these
particular guidelines.
        The majority nevertheless would require the EPA to promulgate effluent limitation guidelines under
33 U.S.C. § 1314(b) in a constrained, step-wise fashion starting with subsection (b)(3). Then the EPA would
have to meet subsections (b)(1)(B), (b)(2)(B), and (b)(4)(B). Next, the EPA would have to proceed to
meeting subsections (b)(1)(A), (b)(2)(A), and (B)(4)(A). After that, it would need to meet the time-lines
under the introductory paragraph of subsection (b), and finally would be required to issue permits in accord
with 33 U.S.C. § 1342(a)(1). Needless to say, these five steps are not even in the order in which the statute
is drafted. I see no language from which one could even infer that Congress intended the EPA to start in
the middle of subsection (b) whenever it promulgated guidelines for effluent limitations. Moreover, the
majority’s fifth step is found only in a separate provision that subsection (b) does not even reference. Thus,
the majority creates a series of steps the EPA must follow that appears nowhere in the statutory language
and which are not even urged on us by the Petitioner as a reason for striking down these regulations.
        More problematic, however, is that the majority then uses this artificial series of steps to chastise the
EPA for engaging in what the majority views as circular reasoning. Because the majority believes that the
technological tools must be assessed first and then the EPA must determine the amount of effluent reduction
attainable with those technologies, it finds impermissible the EPA’s decision to define baseline loadings that
can then be addressed with BMPs. The majority’s approach, however, seems to require the EPA to work
in a vacuum, without consideration of the ultimate goal. If the majority must create steps, it would seem
much more logical for the EPA to first establish a goal consistent with the framework enacted by Congress
in the Clean Water Act, and then determine the means by which it can be best achieved, as the EPA
apparently did here once it was clear that the existing effluent limitations were not producing positive results
when applied to the narrow problem of remining.
No. 02-3628             Citizens Coal Council, et al. v. EPA                                         Page 16


        Here, the EPA was addressing very specific problems associated with remining. It recognized that
the prior regulations made no distinction between previously mined lands and virgin lands, thereby requiring
both to meet the same standard of cleanliness. Because the costs associated with bringing the previously
mined lands into compliance with those regulations were prohibitive, those effluent limitation guidelines
were not effective in reducing acid mine drainage from abandoned mine lands because operators would not
remine the area. While experience after the Rahall Amendment showed that remining under modified
permits was successful in improving the acid mine drainage, many miners remained hesitant to obtain the
modified permits without further EPA action. Had the EPA done nothing, in light of this problem, it would
not have been acting to fulfill the mandate of Congress “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. §1251.
        In my review of the record, the baseline loadings were set in response to the negative experiences
associated with the adoption of the various appropriate technologies. The EPA recognized that although the
technologies theoretically could have resulted in a degree of effluent reduction at abandoned mines, they
would fail to do so whenever the land was not remined. In other words, where miners would not remine,
it seems the degree of reduction actually attainable at abandoned mines would be zero. The baseline
loadings, therefore, were not set “before” considering the technology, as the majority suggests, but after it
became clear that the technological guidelines could not be successful. In short, the “failure” of the EPA
to follow the five-step process created by the majority simply is not a basis on which these regulations can
be struck down.
         The majority also holds that the EPA did not weigh the required statutory factors prior to regulating
as it did. In particular, the majority finds no evidence that the EPA considered any information about the
age of the equipment and facilities, or of the engineering aspects of the application of the various types of
control techniques for BPT, BAT, BCT and NSPS. As before, Petitioners did not make this argument. But,
even if they did, I think the majority misunderstands the EPA’s Final Rule.
       In its Final Rule, the EPA explains that it adopts BMP for BAT because such abatement plans
“should, in most cases, achieve reductions below baseline discharge levels.” 67 Fed. Reg. 3379 (Jan. 23,
2002). It goes on to explain that it adopted BMPs for BAT because “there are no more stringent
technologies that are economically feasible.” Id. at 3380. For the same reason, it applied the BMP to BCT
and BPT. Id.
        Congress has authorized BMPs to supplement effluent limitations. 33 U.S.C. § 1314(e). The EPA
has defined BMPs as “schedules of activities, prohibitions of practices, maintenance procedures, and other
management practices to prevent or reduce the pollution of ‘waters of the United States.’” 20 C.F.R.
§ 122.2 (July 1, 2003) (emphasis added). BMPs consist of “treatment requirements, operating procedures,
and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw
material storage.” Id. The EPA has provided that BMPs are permissible conditions in NPDES permits
when “[n]umeric effluent limitations are infeasible.” 20 C.F.R. § 122.44(k)(3).
        BPTs, on the other hand, consist of “technology” that can attain “a degree of effluent reduction,”
33 U.S.C. § 1314(b)(1)(A), as do BATs, 33 U.S.C. § 1314(b)(2)(A), and BCTs, 33 U.S.C. § 1314(b)(4)(A).
 For those instances where the EPA finds that discharges can be reduced or eliminated during remining by
certain practices without the need to resort to technologies, the very technologies which would not be used
because the land would not be remined, it would seem that adoption of BMPs as the guideline would satisfy
the statute because they supplement the effluent limitations. Accordingly, there would be no need for the
EPA to reconsider all the factors required in formulating BAT, BPT, and BCT in the first instance. See
33 U.S.C. §§ 1314(b)(1)(B), 1314(b)(2)(B), 1314(b)(4)(B).
        In any event, the record is replete with documents reflecting that the EPA engaged in considerations
of costs and other required factors, especially non-water-quality environmental impacts. To the extent that
the EPA may not have considered age of equipment and facilities or engineering aspects, I am by no means
No. 02-3628             Citizens Coal Council, et al. v. EPA                                             Page 17


convinced that it could have considered such factors because (1) BMPs generally consist of things that are
not equipment or facilities, (2) they likely do not have engineering aspects, and (3) these regulations were
made in light of existing regulations.
         An example of a BMP includes the activity of applying lime. 67 Fed. Reg. at 3377. Other BMPs
are regrading and revegetation, diversion ditches, allowing limited or no augur mining, and various types
of channels, drains and wells. Coal Remining Best Management Practices Guidance Manual, EPA 821-B-
01-010, pp. 22-24 (December 2001) (available at http://epa.gov/waterscience/guide/coal/bmp/ last visited
July 28, 2004) (a supporting document incorporated by reference into the regulations, 67 Fed. Reg. at 3371).
Although these BMPs may require use of equipment, a backhoe for example, they are not in and of
themselves equipment, much less facilities. Instead, they are often how land around the mines is changed
and managed. And, to the extent that a BMP might involve use of an augur or other piece of equipment,
it is not the age of the augur that is relevant, but whether and to what extent it can be used at all. Thus, there
is no “age” for the EPA to consider.
        Likewise, I am not persuaded that there are engineering aspects for the EPA to consider given the
nature of BMPs. For example, what aspect of engineering would be involved in revegetation? Similarly,
what aspect of engineering is involved in prohibiting or limiting a practice, like augur mining? I submit that
there aren’t any.
        Moreover, as discussed previously, these regulations were promulgated because the existing
regulations were not producing the desired results in the narrow instances of abandoned mines that could
be remined. There is no allegation by Petitioners that the EPA failed in the first instance to consider the
required factors. In short, the EPA should not be faulted for not reconsidering factors that simply are not
relevant in the narrow context of the subcategories at issue. Accordingly, I cannot agree with the majority’s
conclusion that the Rule must be held invalid for failure to consider all the statutory factors. If the majority
thinks the record is insufficient, it would be better to remand the matter to the EPA, with a request to
supplement the record, than to strike down the Rule. In any event, the EPA’s regulations, viewed in light
of the unique problem it was trying to correct in the narrow context of remining, seem eminently reasonable,
and certainly are not arbitrary or capricious.
       Before concluding, I pause here to address Petitioner’s argument pertaining to the Rule’s lack of
numerical limits. Although whispers of it can be found in a careful reading of the opinion, the majority does
not openly address it.
        We must always start with the statutory text and presume that Congress “says in a statute what it
means and means in a statute what it says.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254
(1992). It is clear that Congress knows how to specify that it requires “numerical” limitations when that is
what it wants to convey because Congress required the EPA to set “specific numerical effluent limitations”
in 33 U.S.C. § 1311(p). That provision, however, does not require generally applicable effluent limitation
guidelines to have specific numerical limitations. In directing that generally applicable effluent limitation
guidelines be promulgated, Congress did not require “numerical” limitations. See 33 U.S.C. § 1314(b).
Instead, Congress specified that the EPA identify “amounts of constituents and chemical, physical, and
biological characteristics of pollutants.” Id.
         The word “amount” is defined not only as a quantity, number or sum, but also as “the whole or final
effect, significance, or import.” Webster’s Third New International Dictionary 72 (unabridged 1971); see
also American Heritage Dictionary 103 (2d college ed. 1982) (defining the word “amounts” as “[t]he
aggregate effect or meaning; import”); Black’s Law Dictionary 83 (6th ed. 1990) (defining “amount” as
“[t]he whole effect, substance, quantity, import, result, or significance”). Indeed, the term “amounts” as
No. 02-3628                  Citizens Coal Council, et al. v. EPA                                                            Page 18


used in § 304 could denote Congress’s intent that the EPA set effluent limitation guidelines in terms of the
effect, substance, import, or effect of a pollutant, not just its sheer quantity. 1
        Such a conclusion is buttressed by other statutory language. For example, Congress defined “effluent
limitation” as “any restriction established by a State or the Administrator on quantities, rate, and
concentrations of chemical, physical, biological, and other constituents which are discharged from point
sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of
compliance.” 33 U.S.C. § 1362(11) (emphases added). Moreover, Congress also provided that
         Whenever, in the judgment of the Administrator, discharges of pollutants from a point source
         or group of point sources, with the application of effluent limitations required under (s
         301(b) of the Act), would interfere with the attainment or maintenance of that water quality
         in a specific portion of the navigable waters which shall assure protection of public water
         supplies, agricultural and industrial uses, and the protection and propagation of a balanced
         population of shellfish, fish and wildlife, and allow recreational activities in and on the
         water, effluent limitations (including alternative effluent control strategies ) for such point
         source or sources shall be established which can reasonably be expected to contribute to the
         attainment or maintenance of such water quality.
33 U.S.C. § 1312(a). In fact, this Court has previously noted in dicta that “Congress did not regard numeric
effluent limitations as the only permissible limitation on a discharger.” Natural Resources Defense Council,
Inc. v. Costle, 568 F.2d 1369, 1380 n.21 (6th 1977) (citing 33 U.S.C. § 1312(a)). These statutory provisions
thus further counsel against limiting the definition of “amounts” to an expression of numerical limitations
as these statutes encompass any restriction, including compliance schedules, and contemplate alternative
strategies that “can reasonably be expected to contribute to the attainment or maintenance of” water quality.
        In sum, I would hold that § 304 does not evince that Congress has “directly spoken” that the EPA
should set numeric effluent limitation guidelines. Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984) (noting that when Congress has “directly spoken” on an issue
a reviewing court “must give effect to the unambiguously expressed intent of Congress”). Because Congress
did not unambiguously require the EPA to set numeric effluent limitation guidelines, EPA’s regulations
should not be invalidated on this basis.
        Finally, Petitioner’s remaining claims, that were not addressed by the majority, are without merit.
Moreover, I would affirm the regulations because the EPA’s construction of the statute is reasonable and
therefore permissible.
         In sum, for the reasons discussed, I would affirm these regulations in their entirety.




    1
       One specific requirement challenged by Petitioners is that under 40 C.F.R. § 434.82. a BM P “will result in average annual
sediment yields that will not be greater than the sedim ent yield levels from prem ined, undisturb ed co nditions.” See Brief of
Petitio ner’s at 62. Although this standard is not num eric in the sense that it requires a sed iment q uantity of X , it certainly is a
standard tha t requires assessmen ts of a quantity and com pariso ns of that quantity to a another predetermined quantity. Thus, it
is akin to a formula that reflects a result, or a number in the context of a result sought, or the import of the number as compared
to a standard . The refore, it satisfies the definition of an “amount.”
