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Southwestern Electric Power Co. v. United States Environmental Protection Agency

United States Court of Appeals, Fifth Circuit

April 12, 2019

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER, in his official capacity as Acting Administrator of the United States Environmental Protection Agency, Respondents

          On Petitions for Review of Final Administrative Actions of the United States Environmental Protection Agency

          Before HAYNES, HO, and DUNCAN, Circuit Judges.

          STUART KYLE DUNCAN, Circuit Judge:

         Steam-electric power plants generate most of the electricity used in our nation and, sadly, an unhealthy share of the pollution discharged into our nation's waters. To control this pollution, the Clean Water Act, 33 U.S.C. § 1251 et seq., empowers the Environmental Protection Agency to promulgate and enforce rules known as "effluent limitation guidelines" or "ELGs." Id. §§ 1311, 1314, 1362(11). For quite some time, ELGs for steam-electric power plants have been, in EPA's words, "out of date." 80 Fed. Reg. 67, 838. That is a charitable understatement. The last time these guidelines were updated was during the second year of President Reagan's first term, the same year that saw the release of the first CD player, the Sony Watchman pocket television, and the Commodore 64 home computer. In other words, 1982. See id. (noting ELGs were "promulgated and revised in 1974, 1977, and 1982"). The guidelines from that bygone era were based on "surface impoundments," which are essentially pits where wastewater sits, solids (sometimes) settle out, and toxins leach into groundwater. Id. at 67, 840, 67, 851. Impoundments, EPA tells us, have been "largely ineffective at controlling discharges of toxic pollutants and nutrients." Id. at 67, 840. Consequently, in 2005 the agency began a multi-year study to bring the steam-electric ELGs into the 21st century. Id. at 67, 841.

         In November 2015, EPA unveiled the final rule: the "Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category," 80 Fed. Reg. 67, 838 (Nov. 3, 2015). The rule updates guidelines for six of the wastestreams that issue from plants and foul our waters. Importantly, the Clean Water Act requires setting new ELGs based on the "Best Available Technology Economically Available" or "BAT." 33 U.S.C. § 1314(b)(2)(B). BAT is the gold standard for controlling water pollution from existing sources. By requiring BAT, the Act forces implementation of increasingly stringent pollution control methods. See NRDC v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987) (describing the Act as "technology-forcing").

         We consider a challenge to the final rule brought by various environmental petitioners. They target two discrete parts of the rule: the new ELGs for "legacy wastewater" (wastewater from five of the six streams generated before a specific date) and for "combustion residual leachate" (liquid that percolates through landfills and impoundments). These two categories account for massive amounts of water pollution. For instance, leachate alone would qualify as the 18th-largest source of water pollution in the nation, producing more toxic-weighted pound equivalents than the entire coal mining industry. The environmental petitioners' basic complaint is that EPA set an unlawful BAT for these two categories. Whereas the BAT for the other streams adopts modern technologies, they claim the agency arbitrarily set BAT for legacy wastewater and leachate using the same archaic technology in place since 1982-namely, impoundments. It was as if Apple unveiled the new iMac, and it was a Commodore 64.

         The environmental petitioners challenge those portions of the rule under the Administrative Procedure Act and the well-worn Chevron test governing review of agency action. See Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). For the reasons discussed below, we agree that the portions of the rule regulating legacy wastewater and combustion residual leachate are unlawful. Accordingly, we VACATE those portions of the rule and REMAND to the agency for reconsideration.

         I. Background

         A. The Clean Water Act

         The Clean Water Act ("CWA" or "Act"), 86 Stat. 833, as amended, 33 U.S.C. § 1251 et seq., was enacted over President Nixon's veto in 1972. See Train v. City of New York, 420 U.S. 35, 40 (1975). Few laws have shouldered a weightier burden-namely, "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a); see also, e.g., City of Milwaukee v. States of Illinois and Michigan, 451 U.S. 304, 318 (1981) ("Congress' intent in enacting [the CWA] was clearly to establish an all-encompassing program of water pollution regulation."); Am. Petroleum Inst. v. EPA, 661 F.2d 340, 343-44 (5th Cir. Unit A Nov. 13, 1981) ("API I") (noting CWA's "ambitious purpose"). To that end, the Act makes "unlawful" the "discharge of any pollutant by any person" into the nation's "navigable waters," unless otherwise permitted. 33 U.S.C. §§ 1311(a), 1362(7), (12).[1]

         We have previously detailed the Act's "distinct, though interlocking, regulatory schemes." Chem. Mfrs. Ass'n v. EPA, 870 F.2d 177, 195 (5th Cir. 1989) ("CMA"), clarified on reh'g, 885 F.2d 253.[2] Here we focus on one of the Act's key regulatory tools: "effluent limitation guidelines" ("ELGs" or "guidelines"), which are nationwide standards set by the EPA Administrator to govern pollutant discharges from point sources. See 33 U.S.C. § 1314(b) (authorizing Administrator to set "effluent limitation guidelines" for "classes and categories of point sources"); Tex. Oil & Gas, 161 F.3d at 927 ("ELGs are the rulemaking device prescribed by the CWA to set national effluent limitations for categories and subcategories of point sources").[3]

         The Act requires ELGs to be based on technological feasibility rather than on water quality. Id. at 927 (citing E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 130-31 (1977); API I, 661 F.3d at 343-44). That is, the Administrator must "require industry, regardless of a discharge's effect on water quality, to employ defined levels of technology to meet effluent limitations." API I, 661 F.3d at 344; see also Tex. Oil & Gas, 161 F.3d at 927 (ELGs are "technology-based rather than harm-based" insofar as they "reflect the capabilities of available pollution control technologies to prevent or limit different discharges rather than the impact that those discharges have on the waters"). The Act therefore mandates a system in which, as available pollution-control technology advances, pollution-discharge limits will tighten. See, e.g., Nat'l Crushed Stone, 449 U.S. at 69 (the Act "provides for increasingly stringent effluent limitations") (citing 33 U.S.C. § 1311(b)); CMA, 870 F.2d at 196 (the Act requires compliance with "technology-based pollutant-effluent limitations that, in time, will become more stringent") (citing 33 U.S.C. §§ 1311(b), 1314(b)). The D.C. Circuit accurately described this aspect of the Act's scheme as "technology-forcing," meaning it seeks to "press development of new, more efficient and effective [pollution-control] technologies." NRDC v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987) ("NRDC I"); see also, e.g., NRDC v. EPA, 808 F.3d 556, 563-64 (2nd Cir. 2015) ("NRDC II") (describing ELG scheme as "technology-forcing, meaning it should force agencies and permit applicants to adopt technologies that achieve the greatest reductions in pollution") (citing NRDC I).[4]

         The Act prescribes various technological standards to be used in setting effluent limitations. Two are relevant here: "best practicable control technology currently available" ("BPT") and "best available technology economically achievable" ("BAT"). Compare 33 U.S.C. §§ 1311(b)(1)(A); 1314(b)(1)(B) (BPT), with id. §§ 1311(b)(2)(A); 1314(b)(2)(B) (BAT). The less stringent of these two standards is BPT, which the Supreme Court has described as only "a first step toward [the Act's] goal." Nat'l Crushed Stone, 449 U.S. at 75 n.14; see also, e.g., BP Explor. & Oil, Inc. v. EPA, 66 F.3d 784, 789 (6th Cir. 1995) (describing BPT as "the first stage of pollutant reduction"). BPT applied to limitations on direct discharges of pollutants during an interim period (originally slated to end in 1984 but later extended to 1989). 33 U.S.C. § 1311(b)(1)(A); Tex. Oil & Gas, 161 F.3d at 927-28; CMA, 870 F.2d at 196. Instead of defining BPT, the Act lists various factors the Administrator must consider in determining it-including an explicit cost/benefit analysis: "the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application." 33 U.S.C. § 1314(b)(1)(B).[5] We have explained that "BPT limitations are intended to represent the average of the best levels of performance by existing plants of various sizes, ages, and unit processes within the category or subcategory for control of conventional pollutants." CMA, 870 F.2d at 203 (citing 52 Fed. Reg. 42, 525); see also, e.g., Nat'l Crushed Stone, 449 U.S. at 75-76 (discussing BPT).

         The stricter of the two standards is BAT, which has applied to existing, direct discharges of toxic and non-conventional pollutants since March 31, 1989. See 33 U.S.C. §§ 1311(b)(2)(A); 1314(b)(2)(A); Tex. Oil & Gas, 161 F.3d at 927-28; see also BP Explor., 66 F.3d at 790 (describing BAT as "the second stage" of pollutant reduction). When pollutants are regulated under this standard, the EPA "must set discharge limits that reflect the amount of pollutant that would be discharged by a point source employing the best available technology that the EPA determines to be economically feasible across the category or subcategory as a whole." Tex. Oil & Gas, 161 F.3d at 928. We have held that BAT limitations must "be based on the performance of the single best-performing plant in an industrial field." CMA, 870 F.2d at 226. In describing the relationship between BAT and BPT, the Supreme Court has explained that a BAT must achieve "reasonable further progress" towards the Act's goal of eliminating pollution, and BPT serves as the "prior standard" for measuring that progress. See Nat'l Crushed Stone, 449 U.S. at 75 (explaining that "BPT serves as the prior standard with respect to BAT['s]" reasonable further progress requirement). As with BPT, the Act lists factors the Administrator must consider in determining BAT. 33 U.S.C. § 1314(b)(2)(B).[6] The Administrator has "considerable discretion" in weighing those factors. Tex. Oil & Gas, 161 F.3d at 928 (citation omitted). Unlike BPT, however, the BAT factors omit a cost/benefit analysis and replace it with a requirement to consider only "the cost of achieving such effluent reduction." Id; see also, e.g., Nat'l Crushed Stone, 449 U.S. at 71 (BPT and BAT factors are "similar . . . except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits"). Indeed, the Supreme Court has explained that, unlike BAT, "BPT limitations do not require an industrial category to commit the maximum economic resources to pollution control, even if affordable." Nat'l Crushed Stone, 449 U.S. at 75.[7]

         B. The Final Rule

         The rule at issue in this case regulates effluent discharges from steam-electric power plants. Those plants burn nuclear or fossil fuels to heat water in boilers, generating steam that drives turbines connected to electric generators. 80 Fed. Reg. 67, 839 n.1. This process produces something nearly everyone regards as good: electricity. Indeed, the plants regulated by the rule provide most of the electricity annually produced in the United States. But the process also produces something everyone regards as bad: pollution. According to EPA, discharges from these plants account for "about 30 percent of all toxic pollutants discharged into surface waters by all industrial categories regulated under the CWA." Id. at 67, 839-40; see also, e.g., Michigan v. EPA, 135 S.Ct. 2699, 2705 (2015) (addressing regulation of air pollution from power plants under the Clean Air Act); ConocoPhillips Co. v. EPA, 612 F.3d 822, 826 (5th Cir. 2010) (addressing regulation of cooling water systems at power plants). For instance, power plant discharges contain toxic metals such as mercury, arsenic, lead, and selenium, which bioaccumulate in fish, accumulate in lake and reservoir sediment, and pollute drinking water supplies. People who eat the tainted fish or drink the tainted water can suffer negative health consequences such as cancer, cardiovascular disease, neurological disorders, kidney and liver damage, and lowered IQs (in children). Id. at 67, 840.

         EPA first promulgated and then revised ELGs for steam-electric power plants in 1974, 1977, and 1982. See id.; see also 39 Fed. Reg. 36, 186 (Oct. 8, 1974); 42 Fed. Reg. 15, 690 (Mar. 23, 1977); 47 Fed. Reg. 52, 290 (Nov. 19, 1982). Those guidelines are now, in the agency's words, "out of date," because "[t]hey do not adequately control the pollutants (toxic metals and other[s]) discharged by this industry, nor do they reflect relevant process and technology advances that have occurred in the last 30-plus years." 80 Fed. Reg. 67, 840. The old rules and the processes they regulated are relics of the past:

The processes employed and pollutants discharged by the industry look very different today than they did in 1982. Many plants, nonetheless, still treat their wastewater using only surface impoundments, which are largely ineffective at controlling discharges of toxic pollutants and nutrients.

Id. ("Surface impoundments" are ponds designed to allow particulates to settle out of wastewater by force of gravity. See infra.) Happily, though, EPA reports that, "[i]n the several decades since the steam electric ELGs were last revised," technologies that are more effective, "affordable," and "widely available" have "increasingly been used at plants." Id. Thus, EPA began a new rulemaking to update power plant ELGs. The agency conducted a detailed industry study[8]from 2006-2009 and on June 7, 2013 issued a proposed rule, 78 Fed. Reg. 34, 432, 34, 439, that generated over 200, 000 comments. 80 Fed. Reg. 67, 844. On November 3, 2015 the agency issued a final rule entitled "Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category" ("final rule" or "rule"). 80 Fed. Reg. 67, 838. The rule addresses these six streams produced by power plants:

1. Flue gas desulfurization (FGD) wastewater

         2. Fly ash transport wastewater

3. Bottom ash transport wastewater

         4. Flue gas mercury control (FGMC) wastewater ("Hg control waste")

5. Combustion residual leachate (or "Leachate")

         6. Gasification wastewater (not depicted in figure below).

80 Fed. Reg. 67, 846-47.[9] The rule treats another category ("legacy" wastewater), which is a subset of five other streams. Infra I.B.I.[10] This diagram illustrates how such streams are produced:

         (Image Omitted)

         When EPA originally regulated steam-electric effluents in the 1970s and 1980s, it did so under the less-stringent BPT standard, see supra I.A, and set BPT for bottom ash transport water and leachate as surface impoundments. See 80 Fed. Reg. 67, 848-49. Surface impoundments, or "ash ponds," are essentially watery pits that "rely on gravity to remove particulates from wastewater" and were "the technology basis for the previously promulgated BPT effluent limitations for low volume waste sources." Id. at 67, 840, 67, 851. As the new rule describes, however, the ensuing three decades have rendered that BPT standard "out of date," because it "do[es] not adequately control the pollutants (toxic metals and other[s]) discharged by this industry, nor do[es] [it] reflect relevant process and technology advances that have occurred in the last 30-plus years." Id. at 67, 840. Moreover, the Act required that the new guidelines for existing direct[11] discharges conform to the stricter BAT standard. See 33 U.S.C. § 1311(b)(2)(A), 80 Fed. Reg. 67, 848-49; see supra I.A.

         EPA thus considered more advanced control methods, which it notes are "affordable technologies that are widely available and already in place at some plants." 80 Fed. Reg. 67, 840. The agency describes those methods as follows:

Chemical precipitation means treating wastewater by introducing chemicals that will react with substances currently dissolved or suspended in the water to produce a solid, non-soluble precipitate, which then can be filtered out or left to settle to the bottom of the wastewater. EPA Wastewater Technology Fact Sheet, EPA 832-F-00-018 (Sept. 2000).
Biological treatment means introducing bacteria or other microorganisms to remove pollutants, specifically "heavy metals, selenium, and nitrates." 80 Fed. Reg. 67, 850.
Dry handling, for fly ash, means "a dry vacuum system that employs a mechanical exhauster to pneumatically convey the fly ash (via a change in air pressure) from hoppers directly to a silo," without getting the ash wet. Id. at 67, 852. For bottom ash, dry handling refers to "a system in which bottom ash is collected in a water quench bath and a drag chain conveyor (mechanical drag system) then pulls the bottom ash out of the water bath on an incline to dewater the bottom ash." Id.
Evaporation, for FGD wastewater and gasification wastewater, means using "a falling-film evaporator (also known as a brine concentrator) to produce a concentrated wastewater stream (brine) and a distillate stream." Id. at 67, 838, 67, 853.

         From those options EPA selected the following technologies as BAT for the various wastestreams:


Technology basis for the main BAT/NSPS/PSES/PSNS regulatory options

FGD Wastewater…………………

Chemical Precipitation Biological Treatment

Fly Ash Transport Water…… .....

Dry handling

Bottom Ash Transport Water….

Dry handling / Closed loop

FGMC Wastewater………………

Dry handling

Gasification Wastewater……….



Impoundment (Equal to BPT)

80 Fed. Reg. 67848-49 (adapted from Table VIII-1-Final Rule: Steam Electric Main Regulatory Options). As shown, the rule set more advanced technologies as BAT for five of the six wastestreams. See also id. at 67, 850, 67, 852, 67, 853 (explaining selection for each stream). For leachate and "legacy" wastewater, however, the rule selected "impoundment" as BAT, the same technology set as BPT in 1982. Id. at 67, 854. Our focus is on the rule's treatment of those streams, and so we provide additional detail below.

         1. Legacy Wastewater

         Legacy wastewater is not a distinct type of wastestream. Instead, as the final rule explains, the term describes wastewater from five of the streams (FGD, fly ash, bottom ash, FGMC, and gasification wastewater) that is "generated prior to" a future date. 80 Fed. Reg. at 67, 854. That date, which is determined by the permitting authority, is required to be "as soon as possible beginning November 1, 2020 but no later than December 31, 2023." 82 Fed. Reg. 43, 496. Wastewater from streams generated before that date is denominated "legacy" wastewater and is not subject to the stricter BAT applicable to those streams. Id. Instead, the BAT for legacy wastewater is "equal to the previously promulgated BPT regulations" in effect since 1982- namely, impoundments. Id. This means that legacy wastewater is allowed by the final rule to contain the same quantity of toxic pollutants allowed since 1982. See id. (setting BAT for legacy wastewater "equal to the previously promulgated BPT limitations on [total suspended solids] in the discharge of fly ash transport water, bottom ash transport water, and low volume waste sources"); see also EPA Study Report, EPA 821-R-09-008, at 5-20 (table listing pollutant concentrations at several individual impoundments studied during the rulemaking process). The "legacy" category will thus encompass a massive amount of wastewater from the five composite streams. For instance, according to the EPA's Study Report, in 2008 alone the average plant produced over 2.7 billion gallons of fly ash transport water per year, as well as over 1.1 billion gallons of bottom ash transport water. Id. at 5-6, 5-7.

         The rule imposes much more stringent limits on wastewater from these same streams generated after the date to be set by the permitting authority (again, between November 1, 2020 and December 31, 2023). For instance, EPA found that a combination of chemical precipitation and biological treatment was the BAT for treating pollution from non-legacy FGD wastewater, and that "dry handling" (a technique for disposing of fly ash and bottom ash without adding water) was the BAT for non-legacy ash wastestreams. Id. at 67, 850-53. These technologies are significantly newer than surface impoundments, and EPA concluded they were the superior option for treating pollution in non-legacy wastewater. Id.

         The rule accounts for the discrepancy between legacy and non-legacy wastewater regulations in various ways. For instance, it explains that legacy wastewater "already exists in wet form" and would thus not be amenable to dry handling, and also that EPA lacked data on whether legacy wastewater could be "reliably incorporated" into a closed-loop process "given the variation in operating practices among surface impoundments containing legacy wastewater." Id. at 67, 854-55. The rule also asserts that EPA lacked sufficient data to determine whether chemical or biological treatment would be effective on legacy wastewater. Legacy wastewater, the agency explained, is often "commingled"-meaning different streams are mixed together in an impoundment-making testing and data collection difficult. Id. at 67, 855. For instance, commingling may result in varying the concentration and "flow rate" of pollutants in an impoundment. Id. The rule acknowledges that multiple plants are in fact using chemical precipitation to treat commingled wastewater, but it nonetheless asserts that EPA lacks the requisite data from those plants. Id. at 67, 855 n.29. Finally, the rule also acknowledges that a few plants discharge from impoundments containing non-commingled FGD legacy wastewater, but it nonetheless declines to establish a stricter BAT for that stream as well. Id. at 67, 855. The rule explains that, in the agency's view, imposing the stricter technologies even on non-commingled legacy wastewater would create bad "incentives"-for instance, encouraging plants to begin commingling FGD with other wastewaters or to release FGD wastewater from impoundments on an "accelerated schedule" prior to the compliance date. Id.

         2. Leachate

         The final rule describes leachate as follows:

Leachate includes liquid, including any suspended or dissolved constituents in the liquid, that has percolated through or drained from waste or other materials placed in a landfill, or that passes through the containment structure (e.g., bottom, dikes, berms) of a surface impoundment.

80 Fed. Reg. 67, 847. Where leachate occurs in a lined landfill or impoundment, it is typically collected and transported to an impoundment, where it is either "discharge[d] . . . directly to receiving waters" or recycled to another impoundment prior to discharge. Id. Unlined landfills or impoundments simply "allow the leachate to potentially migrate to nearby ground waters, drinking water wells, or surface waters." Id. The rule explains that "surface impoundments are the most widely used systems to treat . . . leachate." Id. Elsewhere, the rule acknowledges that "[g]round water contamination from surface impoundments" containing power plant wastewater "threatens drinking water, as evidenced by more than 30 documented cases." Id. at 67, 840; see also EPA Study Report, EPA 821-R-09-008, at 3-24 (landfill leachate diagram). The EPA study detailed the size of leachate pollution: Given plants using current technologies (mostly surface impoundments), leachate pollution amounts to 70, 300 toxic-weighted pound equivalents per year. See Technical Development Document ("TDD"), EPA-821-R-15-007, at 10-39. Leachate thus accounts for more equivalent pollution than the entire coal mining industry. Id.; Annual Effluent Guidelines Review Report, EPA-821-R-16-002, at 2-26 (listing pollution from other industries).

         The final rule sets BAT for leachate equal to the previous BPT standard established in 1982. Id. at 67, 854. The agency offers two primary justifications for its decision not to regulate leachate with any of the more advanced control technologies now available. First, the rule explains that EPA called for comments on leachate regulation during notice-and-comment rulemaking, but that "[c]ommenters did not provide information that the EPA could use to establish BAT limitations" for leachate. Id. at 67, 854. Second, the rule asserts that leachate forms "a very small portion of the pollutants discharged collectively by all steam power plants." Id. The agency reasons that, because the new BAT limits established for wastewater from other streams will substantially curtail total power plant pollution, the new rule "represents reasonable further progress toward the CWA's goals" even without establishing any stricter controls on leachate. Id.

         II. Procedural History

         Four separate lawsuits challenging the final rule were originally brought in the Second, Fifth, Eighth, and Ninth Circuits.[12] Different groups of petitioners challenged different parts of the rule. Various power companies ("Industry Petitioners") challenged the regulation of non-legacy FGD and gasification wastewater.[13] Two water company associations ("Water Company Petitioners"), challenged the non-legacy FGD wastewater regulation.[14] Finally, various environmental groups ("Environmental Petitioners" or "petitioners") challenged the regulation of legacy wastewater and leachate.[15] The four cases were consolidated by the United States Judicial Panel on Multidistrict Litigation and randomly assigned to our court.[16] The Utility Water Act Group ("UWAG") has since intervened to defend those portions of the rule challenged by the Environmental Petitioners.

         In August 2017, we granted EPA's motion to sever and hold in abeyance the Industry Petitioners' and Water Company Petitioners' challenges to the final rule. In September 2017, EPA announced it would reconsider the rule's regulations concerning non-legacy FGD and bottom ash transport water. See 82 Fed. Reg. 43, 494.[17] As a result of these procedural developments, the challenges to the final rule raised by the Industry Petitioners and the Water Company Petitioners are not before us. We address only the challenges brought by the Environmental Petitioners.

         III. Standard of Review

         The Environmental Petitioners challenge the legacy wastewater regulation under the Administrative Procedure Act ("APA"). As relevant here, a court "shall . . . hold unlawful and set aside" agency action under the APA if it finds such action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Under this "highly deferential" standard, Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983), we are "not empowered to substitute [our] judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). This is particularly so where the agency's decision turns on "its evaluation of complex scientific data within its technical expertise." BCCA Appeal Grp. v. EPA, 355 F.3d 817, 824 (5th Cir. 2003) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 2013 (1983)). Indeed, "[i]f the agency's reasons and policy choices conform to minimal standards of rationality, then its actions are reasonable and must be upheld." Tex. Oil & Gas Ass'n, 161 F.3d at 934. Furthermore, the "EPA's choice of analytical methodology [in setting and enforcing standards] is entitled to a presumption of regularity," leaving challengers with a "considerable burden" to carry. Am. Petroleum Inst. v. EPA, 787 F.2d 965, 983 (5th Cir. 1986).

         Our review under the APA is not toothless, however. We must set aside agency action if the agency "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." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("State Farm"); see generally, e.g., Atchafalaya Basinkeeper v. U.S. Army Corps of Eng'rs, 894 F.3d 692, 697 (5th Cir. 2018) (reciting State Farm standard). "[W]e must also ensure that the agency 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action, '" and assess "'whether the [agency's] decision was based on a consideration of the relevant factors[.]'" 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013) (quoting State Farm, 463 U.S. at 43); see also, e.g., Michigan v. EPA, 135 S.Ct. 2699, 2706 (2015) (explaining that "agency action is lawful only if it rests 'on a consideration of the relevant factors'") (quoting State Farm, supra); U.S. Chamber of Commerce v. U.S. Dep't of Labor, 885 F.3d 360, 382 (5th Cir. 2018) ("Illogic and internal inconsistency are characteristic of arbitrary and unreasonable agency action."); Illinois Pub. Telecom. Ass'n v. FCC, 117 F.3d 555, 566 (D.C. Cir. 1997), decision clarified on reh'g, 123 F.3d 693 (unexplained and "seemingly illogical" decisions are arbitrary and capricious). Furthermore, we "may uphold agency action only on the grounds that the agency invoked when it took the action." Michigan v. EPA, 125 S.Ct. at 2712 (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).

         The Environmental Petitioners challenge the leachate regulation under the two-step framework articulated in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), governing judicial review of agency interpretations of statutes. See generally, e.g., BCCA Appeal Grp., 355 F.3d at 824 (discussing Chevron in context of challenge to Clean Air Act regulations). At step one, the court considers "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842. If Congress has directly spoken on an issue, that settles the matter: "[T]he Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. Only if the statutory text is ambiguous can the court proceed to step two, asking whether the agency's construction of the statute is "permissible." Id. at 843. If the construction is permissible, it should be upheld. "[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. "Chevron review and arbitrary and capricious review overlap at the margins," specifically at Chevron step two. Indep. Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996); see also Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1033, 1038 (10th Cir. 2006).

         IV. Analysis

         A. Challenge to Legacy ...

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