6th Cir: Citizens Coal v. EPA State of Kentucky Agency (EPA Appeal; 5/15/2006)

Citizens Coal v. EPA
State of Kentucky Agency
Appeal – EPA
06a0162p.06 5/15/2006

SUHRHEINRICH, Circuit Judge. Petitioners Kentucky Resources Council, Inc. (“KRC”) and Citizens Coal Council (“CCC”) (collectively “Petitioners”) challenge a final rule of the Administrator of the United States Environmental Protection Agency (“Administrator” or “EPA”) promulgated under the Federal Water Pollution Control Act, commonly known as the Clean Water  Act (“CWA” or the “Act”), 33 U.S.C. §§ 1251- 1387. The rule, found at 67 Fed. Reg. 3370 (Jan. 23, 2002), amends the existing effluent limitations guidelines for the Coal Mining Point Source Category at 40 C.F.R. Part 434 by adding two new subcategories: the Coal Remining Subcategory and the Western Alkaline Coal Mine Subcategory (collectively the “Final Rule”). Petitioners argue that the Coal Remining regulations conflict with the specific language adopted by Congress in the Rahall Amendment, 33 U.S.C. § 1311(p), governing pollution abatement at mining sites abandoned before 1977 that companies want to reopen for mining. Petitioners also argue that the creation of the Western Alkaline Mining Subcategory violates the CWA by eliminating numeric pollution limits and that the EPA Administrator acted arbitrarily and capriciously in preferring best management practices to numeric effluent limits for sediment reduction.

A panel of this Court invalidated the EPA’s final rule establishing effluent limitations under the CWA for the two subcategories. The panel unanimously rejected Petitioners’ arguments that the Rahall Amendment deprived the EPA of the authority to promulgate the Coal Remining regulations. A majority nonetheless held that the Coal Remining regulations were invalid on grounds not raised by Petitioners or addressed by the EPA; namely, that the EPA failed to follow procedures the
majority deemed required by law under 33 U.S.C. § 1314. The Court granted en banc review.

For the reasons that follow, we find that the EPA did not act contrary to law or arbitrarily or capriciously in promulgating regulations for the Coal Remining Subcategory.

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