*1 summary judg- motion for and Newman’s
ment. ALLI-
KENTUCKY WATERWAYS
ANCE; Club Cumberland Sierra
Chapter; for the Com- Kentuckians
monwealth; Floyds Fork Environ- Association, Plaintiffs-Appel-
mental
lants, JOHNSON,
Stephen L. in his official as Administrator Unit- Protection
ed States Environmental Defendant-Appellee,
Agency, Kentucky; Kentucky
Commonwealth of Association; Associated Indus-
Coal Kentucky; Kentucky
tries of Chamber Commerce; Kentucky League
Cities, Intervening Defendants-Appel-
lees.
No. 06-5614. Appeals,
United States Court of
Sixth Circuit.
Argued: Jan. 2008. Sept.
Decided and Filed: 2008.
Rehearing Denied Oct. *3 F. Ettinger,
ARGUED: Albert Envi- Center, Policy Chicago, ronmental Law & Lund- OPINION Illinois, Robert J. Appellants. .for Justice, man, Department United States CLAY, Judge. Circuit D.C., ON Appellees. Washington, Plaintiffs, Kentucky Waterways Alli- Ettinger, Environmen- BRIEF: Albert F. ance, Chapter, Sierra Club Cumberland Illinois, Center, Law & Policy Chicago, tal Commonwealth, Kentuckians for the FitzGerald, Kentucky Re- Thomas J. Association, Floyds Fork Environmental Inc., Frankfort, Council, Ken- sources grant the district of sum- appeal court’s Lund- Robert J. tucky, Appellants. Defendants, mary judgment favor of Justice, man, Department United States Johnson, Stephen L. in his official D.C., Vriesenga, R. Washington, Sharon *4 of the United En- as Administrator States Lowe, Kentucky Environmen- Brenda Gail (“EPA”), Agency vironmental Protection Cabinet, Frank- and Public Protection tal Kentucky, of the Ken- Commonwealth fort, Kentucky, Timothy Hagerty, J. Frost Association, tucky Associated Indus- Coal Louisville, Todd, LLC, Kentucky, Brown Kentucky, Kentucky tries of Chamber Brown, Bender, Carolyn M. John C. Commerce, Kentucky League of of McDonald, PLLC, Greenebaum, Doll & Cities, challenge, brought on Plaintiffs’ Riddle, Lexington, Kentucky, Mark S. pursuant to the Administrative Procedures McDonald, PLLC, Greenebaum, Doll & (“APA”), (2000), seq. 701 et § Act 5 U.S.C. Halliday, Louisville, Kentucky, Culver V. 303(c) § approval, of the EPA’s under of Williams, Ogden, Keenon 1313(c) T. Stoll Act, § Kenneth the Clean Water 33 U.S.C. Louisville, PLLC, Kentucky, (2000), Ronald R. Kentucky’s regulatory implemen- of Stockum, Jr., Louisville, quality tation of its Tier II water antide- Kentucky, Van gradation rules. For the reasons set forth Reuther, Appellees. Kevin Minnesota I, II, opinion in and III-A of this parts Advocacy, St. for Environmental Center expressed Judge as for the reasons in well Stoner, Paul, Minnesota, Nancy K. Natu- concurring opinion, AFFIRM in Cook’s we Council, Inc., ral Resources Defense part part and REVERSE the district D.C., Raettig, Karla Michele Washington, order, opinion court’s VACATE Merkel, Integrity Project, Environmental part the EPA’s Brown, D.C., Washington, Long, Scott L. rules, and RE- Graves, Gross, Winick, Baskerville & MAND the matter to the for further Schoenebaum, Moines, Iowa, Ami- Des opin- proceedings consistent with these ci Curiae. ions.1 COOK, SILER, CLAY, and Before: I. BACKGROUND Judges. Circuit Statutory Regulatory
A. Frame- work CLAY, J., opinion delivered 490-94), COOK, (pp. delivered court. J. The Federal Water Pollution Control in a opinion Act, the remainder of the court’s commonly as the Water known Clean seq., 1251 et (“CWA”), concurring opinion, § which “is separate Act 33 U.S.C. SILER, J., comprehensive quality statute de- joined. opinion. concurring Part III-B of this opinion contains the Cook's 1. Part III-A of this respect holding with to Plaintiffs' first Judge Clay Court's opinion expresses the views of holding respect argument. Court’s only. Judge claim is set forth in to Plaintiffs second 470 1342(a)-(d). agency. 33 maintain the chemi state U.S.C. to ‘restore and
signed
Kentucky
The EPA has authorized
to is-
cal,
biological integrity of the
physical, and
”
permits for
within the
1
sue NPDES
waters
waters.’
PUD No.
Nation’s
of Jeffer
Commonwealth,
Ken-
Approval
see
Dept. Ecology, 511
County
son
v. Wash.
Program,
Fed.Reg.
700, 704,
tucky’s
L.Ed.2d
NPDES
48
114 S.Ct.
U.S.
1251(a)).
(Oct.
45,597
6, 1983),
(1994)
program
under a
re-
33 U.S.C.
(quoting
CWA,
Dis-
to ferred to as the
Pollution
Congress sought
passing
(“KPDES”).
charge
System
Elimination
discharge
pollutants
into
eliminate “the
(2007).
Regs.
Admin.
5:050
navigable waters”2 and to
the [nation’s]
goal
quality
of water
attain “an interim
Second,
“requires
the CWA
provides
for the
which
State, subject
approval,
to federal
each
fish, shellfish, and
propagation of
wildlife.”
comprehensive
institute
1251(a)(1)-(2).
33 U.S.C.
establishing
quality goals
standards
goals,
“pro-
for all intrastate waters.” PUD No.
To achieve these
CWA
704, 114
County,
meas-
511 U.S. at
vides for two sets water
Jefferson
Oklahoma,
(citing
L.Ed.2d 716
ures.” Arkansas v.
503 U.S. S.Ct.
*5
1313).
1311(b)(1)(C),
91, 101,
1046,
§§
112
471 704, 1900, applies “the 114 S.Ct. 128 when U.S. at quality of the waters exceed levels neces- (quoting ex L.Ed.2d California fish, sary support propagation Bd., shell- Control State Water Resources rel. fish, and recreation in wildlife and 2022, n. 96 S.Ct. 426 U.S. 131.12(a)(2). the water.” 40 C.F.R. For (1976)). L.Ed.2d waters, regulation requires such Pursuant to a 1987 amendment to the their “quality pro- shall maintained and CWA, quali- state-established finds, tected State full unless the after antidegrada- an ty standards must include intergovernmental satisfaction of the coor- policy “a policy, requiring which is tion public participation provisions dination and state standards be sufficient to main- continuing planning process, the State’s uses of existing navigable tain beneficial allowing lower is neces- waters, preventing degrada- their further sary important to accommodate economic Specifi- Id. at tion.” S.Ct. and social in the development area cally, permits the CWA the revision of which the are located.” 40 waters C.F.R. or water quality certain effluent limitations 131.12(a)(2). However, allowing “[i]n “only subject if revision standards such degradation such quality, or lower water and consistent with the the State shall water quality assure ade- policy [the CWA].” established under 33 quate existing to protect fully.”4 uses 1313(d)(4)(B). Accordingly, U.S.C. 131.12(a)(2). C.F.R. regulations implementing the CWA Finally, Tier III protection provides that “develop adopt each State to high “[w]here waters constitute antidegradation policy and statewide iden- resource, outstanding National such as wa- *6 tify implementing the methods for such ters of parks National and State and wild- 131.12(a) (2008). § policy.” C.F.R. life refuges exceptional and waters of re- regulations provide EPA further ecological creational significance, or that antidegradation policy that and im- “[t]he quality water shall be pro- maintained and shall, minimum, at a plementation methods 131.12(a)(3). § tected.” 40 C.F.R. with” federal be consistent certain stan- adopts Once a State or revises its water provided regulation. for in the dards standards, quality including antidegra- its 131.12(a). § These federal stan- C.F.R. policy, requires dation the CWA the State quali- dards establish three levels water to to EPA for submit these standards the II, I, ty protection: Tier Tier and Tier III. 1313(c)(1). § review. 33 If the U.S.C. protection Tier I the mini- establishes implementation State’s standards and pro- water all mum standard for of a minimum cedures are with the consistent waters that requires “[e]xisting State’s federal by standards the CWA the level of instream uses and implementing the EPA’s regulations, quality necessary to the protect existing approve then the EPA the must state stan- protected.” sixty shall days. uses be maintained dards within 33 U.S.C. 131.12(a)(1). 1313(c)(3). However, § C.F.R. if the state water justified necessity This Tier II also be would need the standard described to be body’s pollution achieving protecting important the water "assimilative the for econom- However, capacity” development. reg- ic which is the amount which the and social the any pollution prohibits level ulation exceeds the increase that support designated negative capacity, its uses. Under would create assimilative to the regulation, regardless necessity pollution a increase that would of the economic social body's pollution. for the decrease a water 19, 2001, May Plaintiffs served notice the CWA’s On satisfy do quality standards must, nine- a action the EPA within intent to commence civil requirements, of their the specify ty days, “notify the State and provision the under citizen suit If requirements. to changes meet such 1365, CWA, alleged U.S.C. changes adopted by the State are not such per- failure of the EPA Administrator days after of notifi- ninety the date within mandatory duty under 33 U.S.C. form his cation, promulgate such shall [EPA] 1313(c)(4) to a stan- promulgate federal 1313(c)(3). standard[s].” 33 U.S.C. antidegradation re- implementing dard In Kentucky. quirements for November History B. Factual and Procedural 2002, a proposed the EPA federal antide- Kentucky antidegra- adopted original its implementation procedure for gradation 1995, Ken- policy in 1979.5 dation however, Plaintiffs, Kentucky to adopt. Protec- tucky Environmental Public that was proposal advised EPA (the “Cabinet”) tion Cabinet established compliance inadequate ensure with policy procedures for this implementation CWA. Ky. Regs. Admin. 5:030.6 by adopting 401 17, 2004, re- February Plaintiffs On 11, 1995, August On Cabinet submitted notice, 60-day demanding their newed antidegradation implementation pro- perform duty EPA to finalize Tier its EPA for Two approval. cedures 7, 1997, rules later, years August on On comply September anti- the CWA. disapproved portion adopted ver- degradation program because it found Cabinet revised implementation the selection criteria for water bodies its antidegradation sion of given would be were procedure regulation, Admin. and, therefore, sufficiently inclusive did 5:030, Reg. it the EPA and submitted requirements not meet the of 40 C.F.R. September on 2004. How- § 131.12. ever, submission, days prior two 21, 2004, Plaintiffs September commenced 8,1999, in to this response
On December against the EPA in the the instant action Kentucky adopted disapproval, revisions *7 States District Court for the United West- standards, including revi- its water Kentucky. initial ern District Plaintiffs’ Ky. to 401 Admin. 5:030. Regs. sions (1) alleged that: the complaint two-count to the Cabinet submitted revisions comply had with manda- failed to its 15, approval EPA for on December 1999. duty tory under the CWA finalize feder- 2000, August 30, On EPA notified II al water Tier II rules Cabinet that these revised Tier (2) Kentucky; and this fail- fully failed to address the identi- standards concerns comply mandatory fied in the 1997 ure to with a CWA disapproval. EPA’s challenge Kentucky’s antidegradation policy, regarding which tiffs’ EPA’s type protection provides afforded Ky. of the revision of 401 Admin. Cabinet's bodies, qualitative categories water various technically challenge a Regs. 5:030 Ky. Regs. is found in 401 5:029. Admin. Kentucky's antidegradation policy, but rather challenge Kentucky’s implementation ais Kentucky's general antidegradation 6. While policy through which of this its selection of policy Regs. Ky. in 401 Admin. contained waters merit and its cate- Tier 5:029, implementation procedures speci- types discharg- gorical certain exclusion of fying particular water with- which bodies fall es from II review. protection category in each are contained Thus, Regs. Plain- Admin. 5:030. duty arbitrary, capricious, opinion was and con- court issued an denying order law, in trary to violation of the APA. summary judgment Plaintiffs’ motion for granting motion Defendants’ for sum- 29, 2005, a January On Plaintiffs filed mary judgment. Kentucky See Water- summary judgment requesting motion for Johnson, ways Alliance v. 426 F.Supp.2d court order the EPA to that the district 612, (W.D.Ky.2006). timely ap- This promulgate antidegradation regulations for peal followed. However, 12, 2005, Kentucky. April on prior to the district court’s issuance of a
ruling summary judgment on Plaintiffs’ II. STANDARD OF REVIEW motion, EPA approved re- antidegradation implementation pro- vised A. Review Under the APA cedures, based on its extensive evaluation upholds When district court on procedures. of those See J.A. at 176-233 summary judgment an administrative (EPA 303(c) Determination Under Section agency’s APA, final decision under the we Act, Regula- Review of Clean Water review the district court’s summary judg 5:030, Kentucky Antidegra- tion 401 KAR novo, ment decision de while reviewing the Policy Implementation Methodology dation agency’s decision under the APA’s arbi 2005) (hereinafter 12, Approv- “EPA (Apr. trary capricious standard. City of Document”)). al Ohio, 827, (6th Cleveland v. 508 F.3d response development, to this Plain- Cir.2007) (quoting Coalition Gov’tPro 27, complaint May tiffs amended their Indus., Inc., curement v. Fed. Prison 2005 to include third count—that (6th Cir.2004)). 435, F.3d The APA approval Kentucky’s revised anti- reviewing directs when the decision of degradation implementation procedures agency, an administrative a court shall arbitrary, capricious, and was otherwise “hold unlawful and agency set aside the 6, 2005, contrary to law. On June Plain- if “arbitrary, capri action” the action is I tiffs moved dismiss counts cious, an abuse of discretion or otherwise Thereafter, complaint. their amended accordance with law.” 5 U.S.C. Kentucky, Kentucky Commonwealth 706(2)(A). “A reviewing agen court Association, Coal Associated Industries of cy’s adjudicative accept action should Kentucky, Chamber of Com- agency’s findings factual if findings those merce, Kentucky League and the of Cities supported by are substantial evidence on intervened as defendants. On June as a the record whole.” Arkansas v. Okla approved the district court Plaintiffs’ homa, 503 U.S. S.Ct. 1046 voluntary dismissal of counts I and II of *8 altered). (emphasis complaint, leaving only the Plain- amended tiffs’ count III claim that the EPA acted standard, APA Under this the arbitrarily capriciously approving reviewing court “must consider whether imple- revised antidegradation the decision was based on a consideration procedures. mentation of the relevant factors and whether there 6, 2005, September judgment.”
On
Plaintiffs filed a has been a clear error of
Council,
summary judgment
Oregon
motion for
on count Marsh v.
Natural Res.
360,
1851,
378,
complaint.
III of their amended
Defen- 490 U.S.
109 S.Ct.
104
(1989)
(quoting
a
responded
filing
dants
cross-motion L.Ed.2d 377
Citizens to
Park,
summary judgment
31,
v. Volpe,
for
on October
Preserve Overton
Inc.
401
31,
416,
2006,
402,
814,
2005. On March
the district U.S.
91 S.Ct.
(1971)).
is
B.
agency
An
decision
Regulations
of
agency:
Statutes
capricious” when the
Congress
which
has relied on factors
interpre
a
reviewing
agency’s
federal
consider, entirely
intended it to
had not
administers, a
of a statute that it
tation
aspect of
important
an
failed to consider
“whether
reviewing court must first ask
explanation
an
problem,
the
offered
directly
pre
the
Congress
spoken
the
that runs counter
its decision
U.S.A,
at
question
issue.” Chevron
cise
so
or is
agency,
before the
evidence
Council, Inc.,
Res.
467
Inc. v. Natural
Def.
it
ascribed
could not be
implausible
842,
2778,
837,
104
L.Ed.2d
S.Ct.
81
U.S.
of
product
or the
a difference
view
(1984).
is
Congress
“If the
694
intent
expertise.
agency
matter;
the
clear,
the end
that is
of the
v.
Home Builders
Nat’l Ass’n
Defenders
court,
give
agency,
well as
must
2518,
- U.S. -,
Wildlife,
127 S.Ct.
in
unambiguously expressed
effect to
(2007)
2529,
Mo
(quoting
L.Ed.2d 467
842-43, 104
Congress.”
at
S.Ct.
tent of
Id.
States,
United
tor Vehicle
Ass’n
Mfrs.
However,
di
if
has not
“Congress
2778.
Co.,
Ins.
Farm Mut. Auto.
Inc. v. State
at
question
rectly
precise
addressed
29, 43,
2856,
77 L.Ed.2d
463 U.S.
S.Ct.
ambigu
and “the statute is silent or
issue”
(1983)).
“may
court
not
reviewing
The
issue,”
then
respect
specific
ous with
agency’s
a reasoned basis for the
supply
question
“the
court is whether
giv
agency
that the
itself has
action
a
agency’s
permissible
answer
based on
Ass’n, 463 U.S.
Motor Vehicle
en.”
Mfrs.
843,
of the
Id. at
construction
statute.”
However,
43,
“[e]ven
at
Regs. 5:030 Finally, im- water, paired which consists of those water III. DISCUSSION bodies for which one or designated more appeal, On Plaintiffs raise two chal- impaired uses are listed as by Kentucky in lenges to the approval EPA’s of Ken- its report biennial under 33 tucky’s antidegradation implementation § U.S.C. is afforded Tier I protec- regulation, Ky. Regs. Admin. 5:030. tion. Ky. See 401 Admin. Regs. 5:030 First, Plaintiffs contend that the EPA’s l(4)(a)-(b). § approval Kentucky’s of classification of Plaintiffs contend that eligible protec- ap- certain waters as for Tier I the EPA’s proval Kentucky’s protection impaired tion rather than Tier II exclusion of was arbitrary, protection waters from Tier II capricious, contrary and was law. arbi- Second, trary and capricious for argue Plaintiffs the EPA’s three reasons. First, approval Kentucky’s Plaintiffs maintain that categorical exemp- Kentucky’s use body-by-water tion of of a water types pollution discharges six ap- proach instead of a procedure parameter-by-parame- from the Tier II review was ter arbitrary, approach for capricious, contrary determining which to law. waters protection merit Tier II challenges We consider each of these in was inconsistent goals with the turn. the CWA and the lan- 131.12(a)(2). guage § of 40 Second, C.F.R. Approval Kentucky’s A. EPA’s that, Se- Plaintiffs claim even if regulations lection of Waters Tier II Protec- permitted Kentucky to body- use water tion by-water body approach, Kentucky’s cate- gorical exclusion of waters listed as “im- Plaintiffs challenge first concerns the paired” § under 33 U.S.C. 1315 is arbi- way in which Ken- trary unsupported by evidence tucky designates protec- waters for Tier II Third, the record. finally, Plaintiffs tion. antidegradation imple- argue that exclusion impaired procedures mentation divide from Tier II results the ex- (1) water bodies into four categories: out- clusion of a substantial number of Ken- standing national resource tucky’s water bodies from Tier II protec- (2) (“ONRW”); (3) water; exceptional high tion. We find none of arguments (4) water; impaired water. have merit. Ky. See 401 Admin. Regs. 5:030. ONRWs, which consist of about 30 miles of Body-by-Water Body 1. Water Ap- two streams and all of underground proach Parameter-by-Parame- Park, rivers Mammoth Cave National Approach ter protection. are afforded Tier III See 401 l(l)(a)-(b). Ky. Admin. Regs. 5:030 Plaintiffs first contend that water, Exceptional which consists of water EPA contradicted the CWA approving satisfying bodies the criteria set forth in Kentucky’s body-by-water body ap Ky. l(2)(a), Regs. Admin. proach 5:030 re- antidegradation policy imple II protection. ceives Tier See 401 mentation because both the CWA and 40 l(2)(b). Regs. 131.12(a)(2) Admin. High qual- 5:030 C.F.R. States to *10 476 Quality than criteria.” approach applicable Water parameter-by-parameter a
adopt
36,-
Regulation,
Fed.Reg.
63
at
receive Tier II Standards
which waters
designating
capacity for
rejected a 782.
assimilative
“[Available
court
The district
protection.
subject
any given
always
is
pollutant
argument, see
Water-
similar
631-33,
regardless of whether
protection,
[Tier
and we
F.Supp.2d
II]
426
at
ways,
pollutants are satis-
the criteria for other
argument unpersuasive.
find
likewise
Thus,
approach,
fied.”
under
Id.
CWA-implementing regula-
The
body could
classified as
same water
be
to ensure that waters
tions
States
I for
pollutants
Tier II
and Tier
for certain
necessary
levels
quality “exceed[s]
whose
279
pollutants.
Valley,
other
See Ohio
fish, shellfish,
propagation of
support
F.Supp.2d at 747.
wildlife and recreation
and on
ie.,
body
body-by-water
their
Under the water
protection,
receive Tier
water”
(also
approach
designational
know as the
existing high
quality
must be main-
“weigh
approach),
variety
it is
of fac-
protected
tained and
unless
demon-
States
body
over-
lowering
quality
judge
segment’s
that a
of water
is
tors
a water
strated
important
Quality
all
quality.”
to accommodate
eco-
Water
Standards
36,782.
Regulation,
Fed.Reg.
at
Tier II
development.
or social
C.F.R.
nomic
131.12(a)(2). However,
overall
as the EPA it-
classification is then “based on the
body
quality
segment,
in its
the water
not on
publicly
has
noted
advance notice
self
rule-making,
Valley,
“the
individual
Ohio
proposed
regulation
pollutants.”
guidelines
F.Supp.2d
approach,
at 747. “Under this
specific
does not
include
identifying
high quality
given pollutant
for a
waters.”
[these]
subject to
Quality
Regulation,
protection
[Tier
II]
Water
Standards
36,782
if, overall,
36,742,
segment
‘high
is
Fed.Reg.
(proposed July
not deemed
”
1998) (to
131).7
pt.
quality.’
Quality
Regu-
be codified at 40 C.F.R.
Water
Standards
36,782.
Instead,
lation,
Fed.Reg. at
“States and Tribes have devel-
ways
identify
various
their
oped
[T]ier
EPA has not found either of
waters.” Id.
[II]
approaches
compelled by the lan-
to be
131.12(a)(2)
“approaches
high
guage
or the
identifying
These
of 40 C.F.R.
into two basic
the EPA
catego-
contrary,
waters fall
CWA. See id. On
(1)
approaches,
advantages
pollutant-by-pollutant
ries:
found
are
“[t]here
(2)
approach.”
body-by-water body ap- disadvantages
to each
Id. The
pollutant-by-
approach
Id.
proaches.”
pollutant-by-pollutant
Under
is easier
(which
pollutant approach
implement
is the
some
same
States “because
parameter-by-parameter
ap-
considering
Plaintiffs’
need for an
assessment
overall
proach),
ap-
“the State makes a classification various factors is avoided.” Id. This
have
pollutant
given
body.” proach might
gen-
for each
also
the benefit of
Valley
erally
including
Ohio
Environmental Coalition v.
more waters within Tier
Horinko,
it
F.Supp.2d
“because would cover waters
(S.D.W.Va.2003).
clearly
attaining goal
The water
then
uses
are
(i.e.,
given
protection against
pol-
supporting
which are not
‘fish-
those
waters
uses
goal
possess
lutants for which “water
but that
is better
able/swimmable’
previously,
agen-
guidance
vides
in assess-
7. As noted
an administrative
useful
this Court
cy's interpretation
own
ing
argument
of its
Plaintiffs’
in this
the merits of
Auer,
deference,
great
entitled to
see
519 U.S.
case.
(1997),
pro-
body approach uses, uses and recreation-based “the Ken based permissible, is protection II Tier bodies Kentucky may reasonably exclude upheld cannot be because tucky rules if the Tier protection un from II to be left of water selecting waters for method uses.8 impaired any of those support water is arbitrary and without protected with Defendants that Relying agree Pl. on We Br. at in the record.” from Tier merely “impaired” of waters exclusion Valley, Plaintiffs claim Ohio the re- protection is consistent with body “impaired” is insuf II listing a water as 131.12(a). § 40 II of C.F.R. justify protec quirements of Tier denial ficient that a maintain that fact They “[t]he tion. implementa- antidegradation more fails to one or body meet water provide protection II procedures Tier tion determinative quality criteria is not “exceptional and the State’s waters” its or wheth quality of its water of the overall Ky. quality waters.” 401 Admin. “high of existing ‘quality exceed[s] the waters er (3)(b). l(2)(b) §§ In con- 5:030 Regs. of necessary propagation to support levels trast, Kentucky only pro- Tier I extends shellfish, and recreation wildlife fish categorized to “surface water as tection ” 40 (quoting on the water.’ Id. 26 uses” applicable designated impaired 131.12(a)(2)). focusing § of Instead C.F.R. “the surface is listed as an unless Plain impaired, the water is on whether outstanding water in 401 state resource Kentucky at a full argue, “must look tiffs Ky. Regs. 5:030 5:026.” Admin. KAR deter ‘qualification criteria’ to range l(4)(a). clari- Kentucky regulation § body quality if a water of sufficient mine categorized that “a surface water as fies protection.” Id. at 25. Be for Tier applicable designated uses impaired proce implementation cause the pursuant a water shall be identified classify fail to II waters on this dures Tier (§ § 1315.” Id. 305 of U.S.C. Section basis, Plaintiffs the EPA contend CWA), however, provide does not approving erred in them. Rather, impaired definition water. requires § to submit a each State counter that exclusion Defendants (“ § report 305 re- biennial waters is protection impaired from includes, alia: port”) which inter 131.12(a)(2). § with 40 C.F.R. consistent (A) that, description quality the water They argue because protection only navigable for waters State dur- requires [the] Tier all waters protection. Kentucky fur- 8. Defendant Commonwealth of ter bodies should receive Tier II argues excluding impaired Rather, waters ther this section out the conditions sets protection with 33 from Tier II is consistent prior modifying that must satisfied 1313(d)(4)(B). The Commonwealth U.S.C. permits stringent ef- NPDES to include less requir- interprets provision this of the CWA 1313(d). fluent limitations. See 33 U.S.C. ing apply antidegradation States to that, 1313(d)(4)(b) provides for water Section applicable to waters whose quality "equals whose or exceeds lev- bodies impaired has been wa- standard attained. As designated protect [their] els ters, definition, their have not attained uses,” any revisions to effluent limitations standard, applicable water the Com- "consis- placed on that water must be argues appropriate not to monwealth that it is policy estab- with the tent antidegradation protec- them Tier II afford this The section lished under section.” does tion. question not address the of how States must statutory ar- We find the Commonwealth’s anti- which receive Tier II determine waters misguided. reading gument to be A careful helpful degradation and is thus not 1313(d) U.S.C. reveals that the section point. resolving parties’ dispute nothing identifying wa- to do with which (B) year ... ing preceding analy- uses.” Regs. Admin. 5:030 l(4)(a). navigable sis of the extent to which all provide waters of State for the [the] approved Kentucky’s The EPA exclusion propagation of a protection and balanced impaired waters from II protection, shellfish, fish, wildlife, population of *13 finding it to be “consistent with the federal and allow recreational activities in and requirement that high quality waters have (C) water; analysis on the an [and] of water quality supports aquatic both the extent to which the elimination of life-based uses and recreation-based uses.” discharge pollutants the and a level of (EPA Document). J.A. at 184 Approval water provides which for the approving Kentucky’s classification of Tier propagation of a balanced waters, that, the EPA noted as Plain- shellfish, fish, population and wildlife argued, tiffs have Kentucky did not imple- and allows recreational activities and ment a body-by-water strict water body water, on the have been or will be approach: requirements achieved of [the Kentucky’s combined selection criteria CWA], together with recommendations for classification of waters for antidegra- necessary as to additional action dation purposes combines some ele- objectives achieve such and for what designational ments approach and waters such additional action is neces- some elements of the pollutant-by-pollu- sary. tant approach. Qualification for the ex- 1315(b)(1). § 38 U.S.C. Section 1315 does ceptional category waters [which receive report this to include an iden- Tier II protection] is meeting based on Instead, tification of impaired waters. criteria, certain which high include levels requirement identify impaired waters in biological diversity, recognition of out- § report seems to come from 33 standing through values other statutory 1313(d)(1)(§ 303(d) CWA) § U.S.C. provisions, exceptional or aesthetic eco- requires “identify which each State to values, logical significance, historical those waters within its boundaries for high levels of quality. This is which the effluent required by limitations typically designational considered a ap- stringent are not enough [the CWA] proach. implement any standard ap- However, in adopting the category plicable to such waters.” 33 U.S.C. high quality waters are [which also af- 1313(d)(1)(A). Kentucky submits its protection], forded Tier II Kentucky has 303(d) impaired list of such waters as chosen to create a “default” category See, part of its annual report. e.g., that contains all other waters of the (2004 J.A. at Kentucky Report to Con- Commonwealth, unless the water gress Quality). on Water This list of im- or has ONRW been show to be impaired paired waters includes “all waters not sup- for a designated use. This approach is porting one or designated more uses.” clearly not a “designational” approach, Integrated Report Final 2006 Congress since no data are for a water to on the Condition of Water Resources in placed high quality waters 2007). Kentucky, II, p. Volume 1 (April category, Kentucky does not main- Thus, antidegradation im- listing high quality tain a waters that plementation clarifies have been classified in that category. categorized impaired “[s]urface as shall be Qualification assessed as not for impaired [C]abinet waters fully supporting any applicable designated (i.e., category waters of the to the EPA submission not considered the WVDEP are
Commonwealth minimum) 303(d) of the Clean Water protection, at a under section II] [Tier by Ken- solely on determination Id. at 748. The court noted that based Act.” meet that a water does tucky been waters that list had classi- other 131.12(a)(2) requirement the 40 C.F.R. and that had fied as that “exceed levels for waters justification why par- no provided shellfish, fish, support propagation of impairments Monongahela ticular in and on recreation and wildlife segments Kanawha river rendered those added). This method (emphasis water.” Tier I “as to other listed opposed rivers from consider- waters of exclusion Id. impairments.” with similar waters combines some II] waters [Tier ation *14 words, that problem 749. In other in that of both concepts approaches, found with EPA’s evidence was court biological are evaluat- data chemical it rivers as Tier I not that classified the decision, making impairment ed their but rather upon impairment, based final decision to include waters but any evidence that the EPA did not have to whether category in this is based on treating waters justify impaired some use water designated for the each classifying I while others as Tier II. Tier attained. being is properly cannot Accordingly, Valley Ohio Document) (EPA Approval J.A. at 185-86 proposition to stand for that a be read original). EPA found (emphasis enough to impairment water’s is not ex- Kentucky’s hybrid ap- use that of this protection it from Tier II when all clude classifying II is proach for Tier waters waters the same impaired are treated 131.12(a)(2). with 40 C.F.R. consistent antidegradation purposes. “Kentucky’s noted cate- The EPA also Perhaps flimsy support recognizing ap- is gorization approach similar to by Plaintiffs provided Valley, Ohio alterna- proach by Region 4 in Ala- approved tively argue excluding impaired wa- (EPA bama and Tennessee.” J.A. at 186 arbitrary Tier II protection ters from is Document). Approval because, approach, under such an contend that Plaintiffs nevertheless body’s protection exclusion from Tier is for its merely listing “impaired” water as by the designated determined uses justify is to designated uses insufficient by rather than the water’s overall rely protection. denial Tier II Plaintiffs However, quality. argument this over- reliance, Valley support. on This Ohio 131.12(a)(2) fact that looks the 40 C.F.R. however, Valley, misplaced. In Ohio body’s quality a water links relevant level by the the issue faced court was whether regula- designated to its uses. Under sufficient in the record there was evidence tion, Kentucky’s implementation proce- the EPA’s approval of West provide protection dures must Tier II Virginia’s protection exclusion Tier II quality all of waters whose “ex- particular segments from of the Monon- support levels necessary propa- ceed gahela and Kanawha rivers. fish, shellfish, and wildlife and gation at 746. found the F.Supp.2d The court in and on the water.” recreation the administrative was insuffi- record 131.12(a)(2) added). (emphasis C.F.R. support cient to decision be- EPA’s words, Kentucky provide must In other only to the pertaining cause the evidence quality to waters whose of those was quality segments river quality than the minimum level of that both is better segments [were] “the fact river uses, impaired prepared support aquatic-life based a list waters needed uses, Im- wildlife and recreational uses. district court’s calculation of percent- waters, which, by definition do not paired age Kentucky waters afforded Tier II quality support have the needed to their protection may be well-founded—the rec- and must “be assessed the [C]abi- uses ord indicates that 90% of the stream fully supporting any designated net as not miles that had been studied at the time of uses,” Regs. Admin. 5:030 the EPA’s decision are afforded Tier II l(4)(a) added), do not fall (emphasis (EPA protection, see J.A. at 187 Approval category within this of Tier waters. Document) fail to explain how —Plaintiffs Impaired waters do even have the the district court’s factual mischaracteri- necessary minimum level that is zation of the record is relevant to our de uses, support designated their let alone a novo evaluation of whether the ap- better than proval Kentucky’s antidegradation reg- uses, support aquatic-life based wildlife arbitrary, ulations was capricious, or con- uses, and recreational uses. Plaintiffs trary to law. criteria for convincingly explain have failed to how the identifying waters afforded II protec- such from Tier II pro- exclusion of waters tion are not to be evaluated based on the problematic tection is under 40 C.F.R. percentage of waters for *15 they pro- which 131.12(a)(2). Accordingly, we are not protection, vide Tier II but upon rather persuaded approval the EPA’s of consistency their 40 C.F.R. Kentucky’s impaired of exclusion waters 131.12(a)(2). Neither the CWA nor its II protection arbitrary, from Tier was ca- implementing regulations specify that a pricious, contrary or to law. percentage certain of a State’s waters
must be afforded Tier II protection. As Percentage Kentucky of long Water as all waters whose “ex- Receiving Tier II Bodies Protec- levels to support propa- ceed[s] tion fish, shellfish, gation of and wildlife and recreation in grant- and the water” are Finally, argue that Plaintiffs protection, ed Tier II regulation district court’s decision should be reversed 131.12(a)(2). satisfied. 40 C.F.R. because it is “based on the misunderstand Plaintiffs’ contention that less than 90% of ing approach that the EPA approved [the] Kentucky’s waters are afforded Tier II provided of 90% waters not, itself, protection does demonstrate II protection.” with Tier PI. Br. at 27. approval Kentucky’s that the of EPA’s an- Plaintiffs contend that “the record tidegradation procedures implementation shows that 90% of the stream miles that arbitrary, capricious, contrary was had been studied as of the time of the law. impaired” decision were not listed as figure “the 90% stream mile does not reasons, foregoing For the we AFFIRM address the extent to which lakes would be grant summary district court’s of judg- protected.” at Id. 28. Plaintiffs maintain ment to Defendants with respect to the that “[a]s continues to collect approval Kentucky’s EPA’s of method of data, percentage of waters found selecting which waters merit Tier II pro- likely impaired higher.” to be much Id. tection. find final argument
We to be mis- guided. Approval Kentucky’s While Plaintiffs’ criticisms of the B. EPA’s Mul- (5) Exceptions Tier II pursuant
tiple
Review9
discharges;11
discharges
renewals and modifica-
to KPDES
challenge concerns the
Plaintiffs’ second
twenty
in less than a
tions that
result
exemptions to
specific
approval
EPA’s
loading.
See
percent
pollutant
increase
which
procedure
applies
II
the Tier
review
Regs.
5:030
Ky.
Admin.
II
into Tier
waters.
discharges
to new
(2)(b)(1)
(3)(b)(l)(a)-(e).
(a)-(e),
§§ 1
The
Kentucky’s antidegradation
imple-
While
regulation
allows non-domestic dis-
also
affords
regulation
generally
mentation
factories)
chargers
opt
out of Tier
(e.g.,
“exceptional
water”
they
II
KPDES
if
permits
review for new
water,”
“high quality
accept permit limits
are “restricted
discharges
resulting
pollution
exempts
(1/2) of the water
no more than one-half
activity
from
specific categories
from
have
limitations that would
based
dischargers
Tier II review and allows
condi-
permitted
design
been
standard
categories
activity to avoid Tier
other
5:030
Ky.
Regs.
tions.”
Admin.
specified permit ef-
accepting
(3)(b)(5).
1(2)00(5),
ap-
§§
particular,
regu-
fluent limitations.
from Tier
proved
exemptions
most of
provides
categorical
lation
it
de
review because
found them to be
process specified
from the Tier II review
minimus.
(1)
Regs. 5:029
in 401
Admin.
for:
Plaintiffs
that the
discharges
pursuant
argue
issued
to storm water
(2)
categorical
permits;10
exemption
coal
general
mining dis-
(3)
sewage
types
pollution discharges
these six
charges;
domestic
(4)
residences;
II review
single-family
procedure
concen-
from the Tier
was
from
(“CAFO”)
contrary
to law.
feeding operation
arbitrary, capricious
trated animal
*16
122.23(b)(1),
portion
opinion expresses only
9. This
11. Under 40 C.F.R.
an animal
of
("AFO”)
Judge Clay.
For the
the views
Court’s hold-
feeding operation
defined as "a lot
claim,
ing
respect
with
to Plaintiffs’ second
(other
facility
aquatic
pro-
or
than
animal
Judge
the reader should refer to
con-
Cook's
facility)”
duction
in which:
curring opinion.
(i)
(other
animals)
aquatic
than
have
Animals
general
been, are,
per
EPA and
often use
The
States
will be
confined and
or
stabled or
dischargers
classes
mits for
where there is
days
fed
for a
or maintained
total of 45
or
agency
a
basis for
to establish the same
period,
any
more in
12 month
dischargers
permit
all
conditions for
in the
(ii)
forage
Crops, vegetation,
growth,
post-
or
See, e.g.,
class.
40 C.F.R.
122.28. “With a
harvest residues are not sustained in the
general permit,
[agency]
issues a
growing
any portion
normal
season over
types
specific
for
of activities
establishes
facility.
the lot or
specific
complying
permit.
rules
large
defines a
a
or
CAFO as
Then,
apply
per
rather than
for an individual
122.23(b)(2).
40 C.F.R.
In
medium AFO.
mit, operators
a Notice
must file
of Intent
words,
large-scale
other
"CAFOs are
industri-
(“NOI”) stating
they plan
operate
that
un
operations
extraordinary
al
that raise
num-
general permit,
negative
a
der the
and absent
example,
bers
For
of livestock.
‘Medium
ruling by
discharges
[agency],
comply
9,999
54,999
many
sheep,
CAFO’
as
raises as
general permit
with the terms
are auto
124,999
(other
turkeys,
lay-
chickens
than
or
matically
Indep.
authorized.” Texas
Produc
hens).
ing
'Large CAFOs'
even more
raise
EPA,
Royalty
&
ers
Owners Assoc.
410 F.3d
sometimes,
staggering numbers of livestock—
964,
(7th Cir.2005).
Both the EPA and
raising literally millions of animals in one
general permits particular
Slates have found
EPA,
Alliance,
Waterkeeper
location.”
Inc. v.
ly
discharges
useful for
of storm water. See
(2d Cir.2005).
399 F.3d
general permits
id.
established
has
categories of
for several different
storm water
discharges.
EPA approved
contend that
most of
particular, Plaintiffs
cate
(1)
gorical exemptions to Tier
by:
law
II review for
contrary
failing
acted
types
discharges
certain
under the ad
exemption only
allowed
ensure
each
principle
ministrative law
which allows an
discharges that would
pollution
individual
agency
exceptions
to create unwritten
ato
percent
ten
of a
not reduce more than
insignificant
statute or rule for
or “de min
(2)
body’s
capacity;
”
imus matters.
Under
well-estab
failing
cap
a cumulative
on
provide
“permissible
lished
it is
principle,
as an
by
caused
the loss of assimilative
agency power,
exercise of
inherent in most
the combined effect of
allowed
schemes,”
statutory
to create categorical
(3)
exemptions;
basing
under these
its
exemptions “to overlook circumstances
exemp-
of the effect
determination
fairly
context
be considered de
assurances made
non-binding
tions
Costle,
minimus.”
Power
Alabama
Co. v.
Cabinet,
than on the text
rather
(D.C.Cir.1979).
636 F.2d
This
Kentucky regulation itself. Unlike the
authority
to create
“is not an
majority,
arguments
I
of these
find each
statute,
ability
depart
from the
but rath
persuasive.
er a tool
in implementing
to be used
legislative
words,
Id. In
design.”
other
1. Limit
Percent
of Ten
Destruction
exemption authority
“this
is narrow in
for De
Capacity
Assimilative
tightly
reach and
bounded
the need to
Minimus
Discharges
show
genuinely
the situation is
de
131.12(a)(2)
The text of 40 C.F.R.
does
minimus or one of administrative necessi
exceptions
provide
any
to Tier II
ty.”
Accordingly,
Id. at 361.
an agency
type
quantity
review based on the
of only
implied authority
to create an
but
pollution,
new sources of
rather
re-
exemption “when the burdens of regulation
that,
whose
quires
for waters
is yield gain
or no
of trivial
value.” Green
support
prop-
better than
EPA,
(6th
baum v.
370 F.3d
Cir.
agation
of fish and wildlife well as re-
2004)
Power,
(quoting Alabama
636 F.2d
creation, ie.,
waters, “that quality
360-61).
“implied authority
This
is not
protected
shall
maintained
unless
available for a
where
regula
situation
*17
finds,
State
full satisfaction of the
the
after
benefits,
tory function
provide
does
the
intergovernmental
public
coordination
regulatory
sense of
the
furthering
objec
of the State’s
participation provisions
con-
tives,
agency
but the
concludes that
that
tinuing planning process,
allowing acknowledged
by
benefits are exceeded
quality
necessary
water
to accom-
lower
is
Power,
costs.” Alabama
added). Cap 2. on De Minimus only Cumulative court to have considered Discharges likewise that a ten suggested issue percent capacity reduction assimilative that argue “[a] Plaintiffs next second any limit de is outer for minimus requirement any exemp- for minimus de Valley, exception. See Ohio II antidegradation require- tion Tier from F.Supp.2d (finding at 770 that subject be exemption ments is that such Virginia’s exception approval of West from cap, a that individual dis- cumulative so discharges individual charges as trivial not pass allowed do causing up percent to a ten loss avail- a im- up having significant end combined reasonable, capacity assimilative able was agree I pact.” Again, PL Br. that failing approval but to indorse the EPA’s such cumulative is in order cap a Virginia’s twenty percent of West de mini- permitted a discharge exemption to be provision for discharges). mus cumulative as de minimus. interpreta- Based on authorities’ noted, already qualify As order tions of the amount of loss of assimilative minimus, any exemption de to the strict capacity signifi- that would considered be requirements only of Tier II review must cant, that, I find in order would to be discharges com exempt pollution whose (and permis- thus considered de minimus a significant bined does lead to effect not exception to 40 sible as C.F.R. a degradation body’s Tier II water 131.12(a)(2)’s requirement that all Tier the limit of ten quality. percent While review), a waters be afforded in capacity destruction of assimilative categorical exemption from Tier II review exempted discharges helps en dividual any discharge must individual sure have a triv that destroy percent than ten would more ial on water a cumulative impact quality, aof Tier II water’s available assimilative cap necessary to com ensure capacity. discharges causing While less many discharges bined effect of al percent than a ca- ten loss of assimilative truly de exemption lowed under pacity might significant also be to be too FEC, 414 F.3d Shays minimus. See minimus, considered de I find this the ten (D.C.Cir.2005) (rejecting the Fed percent clearly supported limit to outer eral Election Commission’s practice. the EPA’s own As the EPA exemption de minimus from $5000 in this did not consider case even whether finance be campaign reform Kentucky’s categorical exemptions could obviously cause it was “an trivial allow individual would i.e., amount, could considering cause a more that donors significant, than ten state, percent, give every amount to loss each *20 Id. at 770-771. Likewise, district, party organization”); and local the EPA has Power, (indicat- indicated that in Alabama as de qualify order to F.2d minimus an exemption must a have cumu- power to find ing agency’s that an cate- cap lative on the reduction of assimilative statutory gorical exemptions schemes capacity that may caused exempted designed is to “overlook circumstances discharges. See 923 (King J.A. at Memo- fairly in context be considered randum) (noting defining that in a “suffi- minimus”). Indeed, if significant de a ciency discharges threshold” for into the degradation quality of Tier water were Great Lakes the “EPA technical experts allowed to in- occur because numerous reached a significance consensus on a de minimus dis- dividually exempted (10%) threshold value of ten percent charges, then the non-textual de minimus coupled capacity, available assimilative exception would be allowed to swallow the ” with a cap (emphasis cumulative add- 131.12(a)’s rule set forth in 40 C.F.R. ed)). a plain language that Tier water’s In light concerns, foregoing I “shall be maintained and quality protect- would hold that cap a cumulative on the determines, ed unless” the State after en- allowable reduction of capaci- assimilative gaging process, in the Tier II review ty is in categorical order a “allowing quality is necessary lower water exemption to Tier ap- II review to be important to accommodate economic or proved as de minimus. Neither party in the development social area which suggested appropriate limit for added). (emphasis the waters are located.” However, cap. cumulative given the only court Accordingly, the to have con- previous regarding discussion the signifi- sidered this issue has found that a cumula- cant negative impact quality water cap necessary in order tive for an ex- caused the loss more than per- ten as de minimus. emption permitted to be cent of a body’s water capaci- Valley, Ohio F.Supp.2d at 770. The ty, I am an exemption convinced that Valley Ohio persuasively court articulated would allow for discharges combined cap: the rationale a for such percent cause more than a ten loss as- perspective From the of maintaining the ie., capacity, similative a significant loss a of Tier body cannot, of Tier II quality, under the (which 131.12(a)(2)), §of is the focus standards, EPA’s own scientific be consid- de minimus standard for cumulative ered de minimus. As the EPA never important is more than the even considered whether a cap cumulative de minimus standard individual dis- approving Kentucky’s when charges; it is former that will dic- categorical let exemptions, alone whether tate the total reduction available assi- the combined effect of individual dis- a capacity milative that water may charges allowed exemptions under such undergo any without review. would fall requirements below the of such on de mini- cap Without cumulative cap, I would find that the EPA acted mus individual de minimus discharges, contrary to approving law in these exemp- easily discharges could consume all of tions as de minimus. Accordingly, I available assimilative for a would reverse grant the district court’s given pollutant parameter, reducing wa- summary judgment to Defendants on ter minimum to the level neces- Plaintiffs’ challenge to sary support existing uses without and remand the matter remand, having undergone ever Tier 2 to the review. EPA. On addition to *21 488 state such as by agencies, Commitments Kentucky’s categori-
considering whether
Cabinet, regarding
application
the
the
of
individual
exemptions
cal
would
antidegradation implementa-
Kentucky’s
more than a
that would cause
discharges
tion
not
the force of
procedures do
have
a Tier II water’s assi-
ten
loss of
percent
Ky.Rev.Stat. Ann.
Kentucky.
law in
See
require the
I would also
capacity,
milative
(2006) (“An
13A.130(1)
§
administrative
potential
the
cumulative
EPA to evaluate
body
by
policy,
not
internal
memo-
shall
as
these individual
so
effect of
randum,
...
or
form of action
[m]od-
other
they
do not cause
com-
to ensure
ify
[or][e]xpand upon
limit a statute
...
or
of the
percent
than ten
bined loss more
Hagan
regulation.”);
or
v.
administrative
Kentucky’s
capacity of
Tier
(“An
Farris,
(Ky.1991)
807 S.W.2d
490
waters.
by
agency
regulations
must
be bound
promulgates....
prohibits
it
KRS 13A.130
Kentucky’s
3. EPA’s Reliance
on
modifying
from
an
administrative
Regarding
Reg-
Its
Commitments
regulation by
policy
administrative
internal
Assessing Their
ulations When
action.”);
v. Ky.
form of
Kerr
another
Impact as De Minimus
l
Registration
Eng’rs
State Bd.
Prof
Surveyors,
& Land
717
S.W.2d
Finally,
argue that
Plaintiffs
deter-
(“Regulatory agencies
(Ky.Ct.App.1990)
exemptions
mining
Kentucky’s
whether
statute,
are
not pow-
creatures of
and have
minimus,
are in fact de
the EPA was not
own;
internally adopted
ers of their
[their]
rely
Kentucky’s
unenforcea-
entitled
on
void,
no
policies are null and
and of
effect
exemp-
these
regarding
ble commitments
whatsoever.”).
they may
Accordingly,
tions,
but rather was
assess
by
evaluating
be considered
the EPA when
exemption
solely
impact
each
based
Kentucky’s
exemp-
whether
Tier II review
language
exemption
on
itself.
I
impact
have
tions will
a de minimus
agree
compelled
conclusion is
Kentucky’s
quality
waters.
regulations.
the federal
See Northwest Envtl. Advocates
EPA
(D.Or.2003)
F.Supp.2d
1268-69
implementing regula-
The EPA’s CWA
include,
(finding that the EPA
was
entitled
require
part
each State
tions
rely on unenforceable commitment from
quality
its water
standards submitted
approving state-promulgat-
State when
review,
antidegradation
the EPA for
“[a]n
standards).
ed environmental
policy
consistent with
[40 C.F.R.]
131.6(d).
§
These
131.12.”
C.F.R.
promises
the Cabinet’s
or commit-
While
regulations
further
federal
way
regarding the
in which it will
ments
provide
State
“Certification
apply Kentucky’s antidegradation policies
Attorney
appropri-
State
or other
General
assessing
not be considered
should
when
legal authority
ate
within the State that
categorical
the minimus effects of the
de
standards
[submitted]
contained
anti-
duly adopted pursuant to State law.”
were
degradation regulations, the Cabinet’s in-
131.6(e). Thus,
reviewing
C.F.R.
terpretations
regulations may
those
rules for com-
understanding
useful in
the effects
their
131.12,
pliance application. Kentucky’s duly adopted
C.F.R.
anti-
degradation
implementation
consider
poli-
must
rules and
regulations
duly
cy
Regs.
“were
found in 401
Admin.
are
adopted pursuant
interpreting
to State law.”
C.F.R.
5:029
5:030.
131.6(e).
regulations,
EPA must first look to the
*22
plain language of the regulations
case,
them-
In the instant
the EPA relied upon
Baptist Physician Hosp. Org.,
selves. See
unenforceable commitments made by the
Military
Inc. v. Humana
Healthcare Cabinet
in determining whether the ex-
Serv., Inc.,
(6th Cir.2007)
337,
481 F.3d
emptions at issue would have an insignifi-
(“As with all
regulatory
matters of
inter-
cant
effect on the
pretation,
plain
we look first
to the
and Tier II waters. The language of Ken-
unambiguous meaning
regulation,
of the
if
tucky’s antidegradation
implementation
any.”).
If the EPA reasonably concludes
regulation clearly provides that the Tier II
regulations
ambigu-
are
process specified
in the regulation
ous,
may rely
then it
on the Cabinet’s
apply”
“shall not
specified
to certain
dis-
interpretation
which,
regulations,
of these
chargers.
See 401
Admin. Regs.
if
light
reasonable in
regulations’
l(2)(b)(l)(a)-(e),
(3)(b)(l)(a)-(e).
§§
5:030
plain language, is entitled to deference.
not,
The regulation
face,
does
on its
pro-
Auer,
905;
See
KDOW summary judgment to Defendants grant ering quality'. of water of Ken- respect to the Document). (EPA Approval J.A. from tucky’s categorical exemptions six Finally, approving the matter II review and remand *23 discharges pursu- and discharges CAFO remand, determining, the EPA. In on that re- permit renewals ant to KPDES Kentucky’s regulatory exemptions whether twenty percent pollu- in less than a sult only discharges exempt II to Tier review EPA stated expansion, explicitly the tion insignificant an effect on II that have the assur- relying it was on Cabinet’s that require quality, I would the EPA to water exemp- it allow that would not such ances Ky. primarily language on the of 401 focus lowering of significant to cause a tions 5:030. In I Regs. particular, Admin. Tier II re- applying without relying EPA on prohibit the from would (EPA Approval J.A. at 206 view. See from the Cab- unenforceable commitments Document) antidegra- that (“By providing concerning implement- inet its methods for discharg- review not dation ing regulation. that CAFOs, Kentucky represent- es from it KPDES that will assure these ed IV. CONCLUSION (both per- and general individual permits I, II, expressed parts the in For reasons mits) in- new or will authorize those of opinion and III-A this as well as the sig- discharges that will not cause creased Judge expressed in concur- reasons Cook’s lowering quality. nificant of water Based below, part in ring opinion we AFFIRM understanding, approves EPA on part opinion and in and REVERSE Ken- provisions as revisions to these court. AFFIRM order district We standards.”); tucky’s J.A. grant summary judg- of Document) (“EPA’s the district court’s (EPA Approval challenge on Plaintiffs’ ment Defendants that, possible it is in analysis shows that Kentucky’s to the EPA’s of selec- situations, expansion limited a 20% could However, RE- tion of Tier II waters. we than assi- use more 10% of available of sum- water, grant VERSE district court’s capacity receiving milative of mary judgment respect to Defendants with could leave little challenge ap- expansion. However, Kentucky to Plaintiffs’ the EPA’s after the 11, 2005, Kentucky’s categorical exemption if of April proval in its letter that stated arise, types pollution discharges of six from such situations Commonwealth antidegradation would review. Tier review. We thus VACATE that analyses light In of EPA’s and portion approving decision assurances, approving provi- Kentucky’s EPA is this of cer- categorical exemption sion.”). by review, These commitments made from Tier II tain reasonably cannot be construed Cabinet EPA so REMAND this matter interpretations Ky. as mere of 401 Admin. aspect it this 5:030, EPA Regs. and the was not entitled implementation proce- rely upon the de evaluating them in a that is dures manner consistent with impact regulation on the minimus opinion. Judge concurring Cook’s quality Kentucky’s waters. COOK, joined Judge, concurring, Circuit view, contrary my the EPA acted SILER, Judge. Circuit by relying
law
on these unenforceable
I, II, III-A,
joinwe
Accordingly,
parts
commitments.
I would find While
IV
separate-
we
Judge Clay’s opinion,
last
to be
write
this
contention
Plaintiffs
holding
Discharges
with re-
4.
under storm
express
gen-
the Court’s
ly to
permits;1
eral
to Plaintiffs’ second claim-that
spect
Kentucky’s six
Discharges
from
ani-
approving
EPA erred
concentrated
(“CAFOs”).2
For
feeding
operations
from Tier
review.
mal
follow,
EPA
that the
we find
reasons
Reg.
Admin.
5:030
See
exemptions, and
approving
did err
l(2)(b)(l)(a),
l(2)(b)(4)-(6);
(d),
(e);
§§
grant
the district court’s
REVERSE
thus
(d),
l(3)(b)(2)-(4).
(e);
l(3)(b)(l)(a),
summary judgment to the EPA
this
Unless a statute or
REMAND
to the
the matter
point
“extraordinarily
employs
rigid” language,
consistent
proceedings
for further
recognize an
courts
administrative law
opinion.
*24
agencies
that allows
principle
to create
exceptions
unwritten
to a statute or rule
I.
”
for “de
matters.
v.
minimis
Greenbaum
(6th
527,
Cir.2004);
370 F.3d
534
see
EPA
A.
Whitman,
1190,
also
243
Ober
F.3d
Kentucky’s antidegradation regulations
Cir.2001)
(9th
(finding
1193-95
the
that
discharges
or
into
expanded
new
may “exempt
de
minimis sources
waters to
“exceptional”
“high quality”
or
pollutant] from
Air
pollution
[a
[Clean
Act]
review,
five cate-
pass
exempt
but
controls”). Under this principle,
“per
it is
them
discharges, designating
as
gories
an
agency
missible as
exercise of
power,
causing insignificant
loss.
water-quality
statutory schemes,
in most
inherent
discharges are:
These
in
overlook circumstances that
context
Any
under a re-
expanded discharge
1.
may fairly be considered de minimis.”
permit,
newed or modified KPDES
Costle,
Ala.
Co. v.
636
Power
F.2d
long
so
does not
expansion
as the
(D.C.Cir.1979).
authority
This
“is not
pollutant loading
increase
20% or
statute,
ability
depart
from the
rath
but
more;
er a
be used in
the
implementing
tool to
discharges
Industrial
if the emitter
2.
design.”
An
legislative
agency
Id.
thus
discharges pollutants at
less than
implied authority
exempt
has
“
half the
authorized
concentration
regulation yield
“when the burdens of
”
permit;
a normal
KPDES
Greenbaum,
or
gain of trivial
no value.’
Power,
discharges
(quoting
Domestic
if the emitter
fense Cir.1993) (4th (“EPA reviewing in a sits *27 state-implemented stan-
dards, rejection powers 1313(c)).
only.”) (citing 33 U.S.C. Short- circuiting the promulgation process America, normal UNITED STATES of by addressing through deficiencies agency Plaintiff-Appellee, commitments contravenes 1313(c)(3), but hinders an important also Jr., ALEXANDER, Damon objective public participation rule- — Defendant-Appellant. making process. generally Appala- See EPA, chian Power Co. v. 208 F.3d No. 07-3219. (D.C.Cir.2000) (stating Appeals, States Court of United “escape the notice comment re- Sixth Circuit. by labeling major ... quirements sub- legal stantive addition to a rule a mere June 2008. Argued: interpretation”). Enforceability ar- also Filed: Aug. Decided and gues against EPA’s reliance on infor- See, e.g., mal state commitments. River- (an Cement,
side