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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Responds To EPA Petition for Rehearing In Mining Case  Posted: January 27, 2005

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CITIZENS COAL COUNCIL and )

KENTUCKY RESOURCES COUNCIL, )

INC. )

) No. 02-3628

Petitioners, )

)

v. )

)

UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY, )

)

Respondent. )

____________________________________)

ON PETITION FOR REVIEW OF FINAL AGENCY

RULEMAKING PURSUANT TO FRAP RULE 15

___________________________________________________________

RESPONSE TO PETITION FOR REHARING EN BANC ___________________________________________________________

THOMAS J. FITZGERALD

Kentucky Resources Council, Inc.

213 St. Clair Street, Suite 200

Post Office Box 1070

Frankfort, Kentucky 40602-1070

(502) 875-2428

(502) 875-2845 (fax)

Attorney for Petitioners Citizens Coal

Council and Kentucky Resources

Council, Inc.

2

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10

I. The Panel Did Not Consider Issues Not Properly

Before The Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6

II. The Panel’s Decision Is Fully Consistent With Chevron

and BP Exploration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8

III. EPA’s Allegation Of Factual Errors In The Panel Decision

Does Not Support Rehearing Of Any Sort . . . . . . . . . . . . . . . . . 8-10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

INTRODUCTION

Citizens Coal Council and Kentucky Resources Council, Inc., (collectively, “Petitioners”) oppose the petition for rehearing and suggestion for rehearing en banc filed by the United States Environmental Protection Agency (“EPA”). EPA’s primary point is that the decision conflicts with Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), but EPA is mistaken. Indeed, the agency’s arguments do not really concern the application of Chevron; they instead simply disagree with the panel’s interpretation of the statutory procedural requirements for creating and implementing effluent limitations. The panel owed the agency no deference on that point because the Court’s interpretation flows directly from the language of the statute. Because EPA has failed to demonstrate any point of law that the panel overlooked or misapprehended, the agency has failed to identify any basis for rehearing.

BACKGROUND

This case challenged an EPA rulemaking implementing two aspects of the Clean Water Act (“CWA”). First, the panel considered whether Congress, in enacting the “Rahall Amendment,” 33 U.S.C. § 1311(p), intended to curtail EPA’s general authority to create effluent limitations. In accordance with Chevron, the panel first considered whether Congress had directly spoken to the question. Upon concluding that the statutory text and legislative history were ambiguous, the Court deferred to EPA’s construction of the statute, found the agency’s reading to be reasonable, and upheld the agency’s position. Citizens Coal Council v. U.S. E.P.A., 385 F.3d 969, 978-80 (6th Cir. 2004) (“CCC v. EPA”).

Second, the panel considered whether EPA conducted its rulemaking “without observance of procedure required by law.” Id. at 980-83; see 5 U.S.C. § 706(2)(D). Again in keeping with Chevron, the court began its analysis with the statutory text and concluded that the CWA establishes procedural requirements to be followed by EPA in developing effluent limitations. CCC v. EPA, 385 F.3d at 980-83. The panel held that the statute was unambiguous on this point and, accordingly, did not defer on this issue. See: Chevron 467 U.S. at 842-43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”).

ARGUMENT

EPA’s petition for rehearing has several subheadings but boils down to two points, both addressed to the holding that EPA had failed to follow the CWA’s procedural requirements. First, EPA complains that the panel considered an issue not properly before it. Second, EPA argues that the decision conflicts with Chevron. These arguments both lack merit.

I. The Panel Did Not Consider Issues Not Properly Before The Court

The panel conducted a “searching and careful” inquiry into EPA’s rulemaking, as required by the Administrative Procedure Act (“APA”). See: GTE Midwest, Inc., v. FCC, 233 F.3d 341, 344 (6th Cir. 2000). As part of that inquiry, the majority exercised its authority to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706.

EPA contends that the panel’s inquiry into the agency’s noncompliance with the CWA’s procedural requirements is inconsistent with two cases stating that courts should not consider arguments not first presented to the agency during administrative proceedings. Petition for Rehearing (hereinafter “Pet.”) at 8-9 (citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-54 (1978), and BP Exploration & Oil v. EPA, 66 F.3d 784 (6th Cir. 1995)). EPA’s argument is flawed in both its premise and its conclusion.

In first place, Petitioners did raise the question whether EPA had properly followed the procedural mandates of 33 U.S.C. § 1314(b), the central statutory provision cited in the panel majority’s opinion. Petitioners specifically raised the question of whether “the Administrator acted arbitrarily, capriciously and inconsistently with Section 304(b) [33 U.S.C. 1314(b)] in supplanting numerical effluent limits representing best available technology for sediment reduction with unenforceable, unmeasurable best management practices[.]” Brief of Petitioners at 3. Moreover, Petitioners presented argument on the issue throughout their brief. See, e.g., Brief of Petitioners at 20-21, 35, 38, 46-47, 56-57. Given Petitioners’ attention to the issue, it is difficult to understand EPA’s repeated claim that Petitioners failed to assert the agency’s noncompliance with 33 U.S.C. § 1314(b). 1

However, assuming arguendo that Petitioners did not sufficiently question EPA’s failure to comply with the requirements now at issue, EPA is incorrect in suggesting that the Petitioner’s failure to raise the issue would deprive this Court of the authority, sua sponte, to assure compliance with procedures that the CWA requires. Vermont Yankee and BP Exploration do not support such a position.

In Vermont Yankee, the Supreme Court reversed a decision of the D.C. Circuit holding that the environmental impact statement for construction of certain nuclear reactors was fatally defective for failure to examine energy conservation as an alternative. 435 U.S. at 536-37. In criticizing the D.C. Circuit’s opinion, the Supreme Court emphasized the limited nature of judicial review of an agency’s consideration of environmental factors–“limited both by the time at which the decision was made and by the statute mandating review.” Id. at 554. However, whereas Vermont Yankee established the principle that courts may not impose on agencies procedural requirements beyond those found in the Constitution or applicable statutes, id. at 539-48, the decision neither expressly nor implicitly bars courts from conducting sua sponte examinations of agency compliance with procedural requirements that Congress has in fact imposed. Simply put, Vermont Yankee does not hold that a court cannot, sua sponte and in furtherance of its authority under 5 U.S.C. § 706, determine whether challenged agency rulemaking was conducted consistently with the enabling statute. Compliance with Congressionally-mandated procedures does not turn on third-party challenges; it is part of the fabric of judicial review of agency action.

Nor does the panel decision in this case conflict with BP Exploration. While this Court in BP Exploration agreed with EPA’s position in that appeal that Industry parties had failed to assert a particular substantive challenge during the rulemaking, the Court nonetheless reviewed and upheld EPA on the merits of that issue. 66 F.3d at 798. Nothing in BP Exploration, which involved solely a challenge to the substantive aspects of a rulemaking, Id. at 792, limits this Court’s authority to address, sua sponte, issues regarding agency compliance with statutory procedural requirements that govern the promulgation of particular regulations.

II. The Panel’s Decision Is Fully Consistent With Chevron and BP Exploration

The decision in this case addressed, first, EPA’s rulemaking authority under the CWA and, second, EPA’s procedural obligations in creating and implementing effluent limitations. EPA argues that the panel erred in failing to solicit and defer to EPA’s interpretation of the statute on the second issue, after determining that Congress did not clearly intend the Rahall Amendment to limit EPA’s general rulemaking authority. In Chevron, however, the Supreme Court directed courts to undertake the prescribed statutory analysis as it confronts each specific issue in a particular controversy. 467 U.S. at 842 (“the question is whether Congress has directly spoken to the precise question at issue”) (emphasis supplied). Thus, the panel did not violate the teaching of Chevron when, after deferring to EPA on the question of rulemaking authority under Chevron step two, the majority reviewed and resolved the separate question of EPA’s compliance with the CWA’s procedural requirements under Chevron step one.

Employing traditional tools of statutory construction, the panel majority carefully parsed the admittedly complex language of the CWA and concluded that Congress unambiguously established in those provisions a five-step process for creating and implementing effluent limitations. The sequence of steps prescribed by the majority’s interpretation is dictated by the need to give full effect to each relevant statutory provision and to render no provision superfluous. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’") (citing Duncan v. Walker, 533 U.S. 167, 174 (2001)). As the majority cogently illustrated, taking the prescribed steps in any other sequence would allow EPA to frustrate the CWA’s stated purposes by defining pollution control technologies in terms of a desired outcome and shirking its duty to determine the degree of effluent reduction attainable. CCC v. EPA, 385 F.3d at 981. The majority also showed that construing the CWA differently would enable EPA to side-step consideration of all of the factors that Congress intended the agency to consider in creating effluent limitations. Id. at 982-83.

EPA’s quarrel with the panel on this point is at heart a disagreement over whether or not the CWA is ambiguous with respect to the procedural requirements issue, not a disagreement over Chevron deference. Indeed, much of EPA’s petition offers only merits argument about why the statute could be interpreted differently, rather than argument showing that the rigorous requirements of Rule 35 are satisfied. Indeed, EPA acknowledges that if the pertinent statutory requirements are clear, the agency’s interpretation is not entitled to deference. Pet. at 9. EPA’s displeasure with the panel’s conclusion that, on this issue, the statutory requirements are not ambiguous does not establish inconsistency between the decision and Chevron so as to warrant en banc review.

EPA also briefly asserts that the panel’s reading conflicts with this Court’s treatment of the some of the same statutory provisions at issue in BP Exploration. Pet. at 12. However, EPA admits that this Court did not even consider one of the key the provisions at issue here, 33 U.S.C. § 1314(b)(3), in BP Exploration. Moreover, BP Exploration did not involve the question of EPA’s compliance with the CWA’s procedural requirements, since as the Court noted, that case involved solely a challenge to the substantive choices made by the agency in the rule. See: BP Exploration, 66 F.3d at 792. Given these factors, EPA’s suggestion that the majority’s opinion conflicts with BP Exploration is unfounded.

III. EPA’s Allegation Of Factual Errors In The Panel Decision

Does Not Support Rehearing of Any Sort

EPA asserts that the Court erred in concluding that the agency failed to follow required statutory procedures in establishing the subcategories of effluent limitations at issue in this appeal. Pet. at 12-15. Specifically, and without citation to the record, EPA states with respect to the coal remining category that “EPA considered the amount of pollution reduction available – i.e. the baseline loadings – only after EPA had concluded that the technologies underlying its pre-existing regulations had resulted, and would result, in no reductions.” Pet. at 12. EPA did not cite to rulemaking record to support this argument, nor could it. Instead of supporting EPA on the issue, the rulemaking record reflects that under pre-existing regulations and the Rahall Amendment, seven States had adopted formal remining programs and 330 remining operations had been conducted under State-issued permits using the pre-existing effluent guidelines as modified under Rahall. 67 Fed. Reg. 3376. Thus, EPA’s criticism of the panel majority’s decision on this point is groundless.

Similarly, EPA argues that the panel majority erred in concluding that EPA had failed to document its consideration of the 33 U.S.C. § 1314(b) criteria, asserting that “[i]f provided an opportunity, EPA could provide other relevant citations[]” demonstrating that it did apply the relevant statutory factors in establishing the new effluent limitations.” Pet. at 15 n.5. The right to petition for rehearing did provide EPA with an opportunity to provide citations to the rulemaking record that might support the agency’s arguments. EPA’s Petition for Rehearing should have demonstrated with particularity where any alleged error occurred, yet it did not so demonstrate.

Although an en banc petition is not the appropriate vehicle for asserting alleged factual errors in a panel decision, 6 Cir. R. 35(c), Petitioners recognize that a panel rehearing may be available if factual errors are demonstrated. In this instance, however, EPA has merely alluded to alleged error without providing any record support for its argument.2 Rehearing is unwarranted in such circumstances.

CONCLUSION

For the reasons stated above, Petitioners respectfully suggest that EPA’s petition for rehearing with a suggestion for rehearing en banc should be denied.

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

CERTIFICATE

I hereby certify that on this 26th day of January, 2005, the undersigned caused to be served two true and correct copies of the foregoing Response to Petition for Rehearing En Banc by first class mail, postage prepaid, to:

David A. Carson, Esq.

U.S. Department of Justice

Suite 945 North Tower

999 18th Street

Denver, CO 80202

Sylvia Horwitz, Esq.

Office of General Counsel

E.P.A., Mail Code 2366A

1200 Pennsylvania Avenue, N.W.

Washington, D.C. 20460

_______________________

Thomas J. FitzGerald

1 The Joint Appendix contains comments submitted by the Petitioners to EPA during the rulemaking expressing concern with the agency’s departure from the normal CWA procedures for developing effluent limitations. See: Joint Appendix, Volume I, pp. 0063-4, 0066-7, 0075-6. Commenters pointedly criticized EPA’s

failure to develop the effluent standards based on achievable treatment levels. Id. at 0068-9.

2 EPA cites to 67 Fed. Reg. 3391-96 as evidence of consideration of the factors mandated in 33 U.S.C. 1314. Petition at 15 n.5. EPA’s reliance on that portion of the rulemaking record is misplaced. The cited pages involve an analysis of the economic impacts attributable to the regulations. Nothing there even purports to speak to the factors Congress required EPA to consider in setting best available and best practicable control technologies under 33 U.S.C. § 1314.



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