American Min. Congress v. U.S. E.P.A.

• Citation: 965 F.2d 759
• Decision Date: 27 May 1992
• Docket Number: No. 91-70176,91-70176
• Parties: , 60 USLW 2774, 22 Envtl. L. Rep. 21,135 AMERICAN MINING CONGRESS; National Coal Association; National Council of Coal Lessors; National Aggregates Association; American Iron & Steel Institute, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 759

965 F.2d 759

35 ERC 1032, 60 USLW 2774, 22 Envtl.

L. Rep. 21,135

AMERICAN MINING CONGRESS; National Coal Association National Council of Coal Lessors; National Aggregates Association; American Iron &amp Steel Institute, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 91-70176.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 9, 1991.

Decided May 27, 1992.

John A. Macleod, Crowell & Moring, Washington, D.C., for petitioners.

Randolph L. Hill, E.P.A., Washington, D.C., for respondent.

Petition for Review of a Rule Promulgated By The Environmental Protection Agency.

Before PREGERSON, FERGUSON, and O'SCANNLAIN, Circuit Judges.

FERGUSON, Circuit Judge:

The American Mining Congress ("AMC") challenges the Environmental Protection Agency's ("EPA's") recent Clean Water Act ("CWA") storm water discharge rule, National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed.Reg. 47,990, 48,065 (1990) (to be codified at 40 C.F.R. § 122.26(b)(14)(iii)), because it requires storm water discharge permits for "inactive mining operations." Id. at 48,065. AMC contends that the rule contravenes Congressional intent, is arbitrary and capricious, is improperly retroactive, and was promulgated in violation of certain procedural requirements. We uphold EPA's storm water rule.

I BACKGROUND

Congress enacted the CWA ¹, 33 U.S.C.A. §§ 1251-1387 (West 1986 & Supp.1991), "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a), 33 U.S.C.A. § 1251(a). See Rybachek v. EPA, 904 F.2d 1276, 1282 (9th Cir.1990). The Act seeks to accomplish this objective principally by controlling "point source" pollution. ²

The Act prohibits the "discharge of any pollutant" from a point source except as authorized by a National Pollutant Discharge Elimination System ("NPDES") permit. See CWA § 301(a), 33 U.S.C. § 1311(a); CWA § 402, 33 U.S.C. § 1342. The CWA authorizes EPA to issue an NPDES permit containing conditions that implement various requirements of the Act. CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1). ³

Storm water discharges are a significant source of environmental pollution. 55 Fed.Reg. at 47,990-92; see 132 Cong.Rec. 32,381 (1986). Since 1973, EPA has issued several rules that have attempted to address the appropriate regulation of storm water runoff. Each rule has been the focus of substantial controversy.

Following the enactment of the CWA in 1972, EPA promulgated NPDES permit regulations exempting uncontaminated storm water discharges from regulation on the basis of administrative infeasibility. These regulations were challenged and set aside in NRDC v. Costle, 568 F.2d 1369, 1377 (D.C.Cir.1977), on the ground that In 1987, Congress passed the Water Quality Act ⁴ ("WQA") amendments to the CWA, setting explicit and firm deadlines for EPA regulation of storm water discharges. Section 402(p) of the Act establishes a moratorium until October 1, 1992 on permits for storm water discharges, with five exceptions including an exception for "discharge[s] associated with industrial activity." CWA § 402(p)(2)(B), 33 U.S.C. § 1342(p)(2)(B). Section 402(p) also outlines an incremental, or "phase-in" approach to issuance of storm water discharge permits. The purpose of this approach was "to allow EPA ... to focus [its] attention on the most serious problems." 133 Cong.Rec. 991 (1987) (statement of Rep. Stangeland). Section 402(p) required EPA to promulgate rules regulating permit application procedures in a staggered fashion.

                EPA could not exempt categories of point sources from the statute's permitting requirements.   Following this decision, EPA issued proposed and final rules covering storm water discharges in 1980, 1982, 1984, 1985 and 1988.   These rules were challenged at the administrative level and in the courts.
                

In response to the 1987 amendments, EPA published its proposed storm water rule on December 7, 1988. National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 53 Fed.Reg. 49,416 (1988). After extensive public comment, EPA issued the final rule on November 16, 1990. 55 Fed.Reg. 47,990.

EPA's final storm water rule defines "discharge[s] associated with industrial activity" to include contaminated discharges from both active and inactive mines. EPA excluded from the category, however, discharges from inactive coal mines reclaimed under the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C.A. §§ 1201-1328 (West 1986 & Supp.1991), and from inactive non-coal mines reclaimed under applicable federal or state laws after the rule's effective date. 55 Fed.Reg. at 48,033, 48,065-66. As a result of this exclusion, such point source discharges are not required to obtain NPDES permits until after the expiration of the storm water permit moratorium.

II DISCUSSION

A. Threshold Issues

We have jurisdiction under section 509(b)(1)(F) of the CWA, 33 U.S.C. § 1369(b)(1)(F), which allows us to review the regulations governing the issuance of permits under section 402, 33 U.S.C. § 1342, as well as the issuance or denial of a particular permit. NRDC v. EPA, 656 F.2d 768, 775 (D.C.Cir.1981); cf. E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 136, 97 S.Ct. 965, 979, 51 L.Ed.2d 204 (1977) (review of regulations issued under CWA § 301).

Petitioners have standing to challenge EPA's storm water discharge rule under CWA section 509(b)(1), 33 U.S.C. § 1369(b)(1), which permits any "interested person" to seek review of designated actions of the EPA Administrator. AMC and the other petitioners are national trade associations representing the interests of the mining industry. Many of their members own inactive mines which are required to apply for permits under EPA's storm water rule. They suffer adverse effects to their economic interests and thus are "interested persons" under section 509(b)(1). See Trustees for Alaska v. EPA, 749 F.2d 549, 554 (9th Cir.1984).

B. Standard of Review

The Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 (1988), governs our review of EPA's storm water rule. We "set aside agency action, findings, and conclusions" if we find them to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right"; or "without observance of procedure required by law." Id. § 706. Our In reviewing EPA's construction of the CWA, we must determine " 'whether Congress has directly spoken to the precise question at issue. 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.' " Wyckoff Co. v. EPA, 796 F.2d 1197, 1200 (9th Cir.1986) (quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)). Accordingly, we must not defer to an agency interpretation that alters the clearly expressed intent of Congress. Dole v. United Steelworkers of America, 494 U.S. 26, 42-43, 110 S.Ct. 929, 938-39, 108 L.Ed.2d 23 (1990).

function is "to determine whether [EPA] 'has considered the relevant factors and articulated a rational connection between the facts found and the choice made.' " Rybachek, 904 F.2d at 1284 (quoting Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983)).

If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782; Wyckoff, 796 F.2d at 1200. If EPA's interpretation of the CWA is "reasonable, '[w]e must defer to the agency's interpretation even if the agency could also have reached another reasonable interpretation....' " Wyckoff, 796 F.2d at 1200 (quoting Washington v. EPA, 752 F.2d 1465, 1469 (9th Cir.1985)). See also Arkansas v. Oklahoma, --- U.S. ----, 112 S.Ct. 1046, 1056-57, 117 L.Ed.2d 239 (1992).

C. Statutory Interpretation

Section 402(p)(2)(B) of the CWA, 33 U.S.C. § 1342(p)(2)(B), authorizes EPA to require a permit for any storm water discharge "associated with industrial activity." AMC contends that EPA's regulation of discharges from inactive mines under this section contravenes Congress' intent.

AMC argues that the plain language of the statute authorizes EPA to regulate only discharges from "industrial activity." Since no "activity" occurs at an inactive mine, AMC reasons, the statute prohibits EPA from requiring permits for discharges from such mines.

AMC's reading of the statute ignores a significant part of the language at issue. Section 402(p)(1)(B) allows EPA to require a permit for "[a] discharge associated with industrial activity." (Emphasis added.) Congress did not stipulate that the activity must occur concurrently with the discharge of storm water. EPA has determined that discharges from areas of past industrial activity at a variety of facilities, including mines, may be "associated with" that industrial activity. See 40 C.F.R. § 122.26(b)(14) (definition of "discharge associated with industrial activity" includes discharges from "areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water"). This conclusion is consistent with the language of the statute. ⁵

AMC also looks to the terms of CWA § 402(l ), which states that "[t]he Administrator shall not require a permit ... for discharges of stormwater runoff from mining operations ... composed entirely of flows ... which are not contaminated by contact with" polluting materials. (Emphasis added.) AMC argues that "operations" are by definition ongoing, and that the use of the term "operations" in this section demonstrates Congress' intent, throughout the WQA, to...