Team 28

IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

Docket Nos. 17-000123 and 17-000124

ENERPROG, L.L.C.,

Petitioner,

and

FOSSIL CREEK WATCHERS, INC.,

Petitioner

- v. -

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent

On Consolidated Petitions for Review of a Final Permit Issued Under Section 402 of the Clean Water Act

BRIEF OF FOSSIL CREEK WATCHERS, INC., Petitioner

Oral Argument Requested

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii STATEMENT OF JURISDICTION............................................................................................... 1 STATEMENT OF THE ISSUES.................................................................................................... 1 STATEMENT OF THE FACTS .................................................................................................... 2 SUMMARY OF THE ARGUEMNT ............................................................................................ 5 ARGUMENT .................................................................................................................................. 7 I. STATE OF PROGRESS’ CERTIFICATION CONDITIONS MUST BE INCLUDED IN ENERPROG’S NPDES PERMIT ............................................................................................... 7

A. The EPA Lacks Authority to Review State Certification Conditions ................................. 8 B. CACA Requirements are “appropriate” Requirements of State Law as Required by CWA 401(d) and May Be Properly Attached as Certification Conditions ....................................... 10

II. THE APRIL 2017 DELAY NOTICE MUST BE VACATED BECAUSE THE EPA FAILED TO STATE AN ADEQUATE BASIS FOR ITS ACTION OR PROVIDE THE PUBLIC WITH NOTICE OR AN OPPORTUNITY FOR COMMENT .............................. 13

A. EPA Lacked Authority to Impose APA 705 Judicial Stay Upon Compliance Dates After Passage of Effluent Rule’s ‘Effective Date’ ........................................................................... 12 B. The April Notice Should Be Vacated as an Unlawful Agency Action Because the EPA Acted Arbitrarily & Capriciously in its Failure to Provide an Adequate Justification for Imposition of its Stay Pending Reconsideration ..................................................................... 15 C. The April Notice Should be Vacated Because the EPA Failed to Comply with the Notice and Comment Requirements of 553(b)-(c) Required for Issuance of Substantive Rulemaking................................................................................................................................................. 17

III. EPA REGION XII CAN PROPERLY RELY ON BEST PROFESSIONAL JUDGMENT AS AN ALTERNATIVE GROUND TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES, INDEPENDENT OF THE APPLICABILITY OR EFFECTIVENESS OF THE 2015 STEAM ELECTRIC POWER GENERATING INDUSTRY EFFLUENT LIMITATION GUIDELINES ....................................................... 19

A. EPA Region XII Has the Authority to Set the Discharge for Ash Transport and Treatment Wastes to Zero Discharge on a Case-by-Case Basis Independent of the ELG Set for the Category of the point source ................................................................................................... 19

ii

B. EPA Region XII Properly Decided the Zero Discharge Requirement for Bottom Ash and Fly Ash .................................................................................................................................... 21

IV. THE COAL ASH POND IS A WATER OF THE UNITED STATES, THEREFORE DISCHARGES INTO IT REQUIRE A NPDES PERMIT ..................................................... 22

A. The July 1980 Suspension is Subject to Judicial Review Because it is “Final Agency Action” .................................................................................................................................... 22 B. The Suspension was Unlawful Because it Did Not Follow the APA’s Procedural Requirements for Rulemaking ................................................................................................ 24

1. The EPA was Required to Engage in Notice and Comment Rulemaking Because the Suspension Amounted to an Amendment of an Existing Rule ......................................... 24 2. The Suspension was Not in Accordance with the APA, So it Should Be Vacated ..... 26

C. Even if the July 1980 Suspension was Lawful, the Coal Ash Pond Nevertheless Qualifies as a Water of the U.S. ............................................................................................................. 27

V. THE ASH POND CLOSURE AND CAPPING PLAN REQUIRES A PERMIT FOR THE DISCHARGE OF FILL MATERIAL PURSUANT TO SECTION 404 OF THE CWA AS THE FUNDAMENTAL NATURE OF THE ASH POND IS CHANGED ...................... 29

A. The MEGS Ash Pond Should be Considered a “Navigable Water” Under the “Significant Nexus” Test Forth in Rapanos ................................................................................................ 30 B. Once the Coal Ash Pond Ceases to be Used as a Waste Treatment Pond it No Longer Qualifies for the Exclusion to Waters of the U.S. .................................................................. 31 C. The Cap and fill Plan Requires a 404 Permit .................................................................... 32

CONCLUSION ............................................................................................................................. 33

iii

TABLE OF AUTHORITIES

United States Supreme Court Cases Bates v. United States

522 U.S. 23 (1997) ..................................................................................................................... 14 Bennett v. Spear

520 U.S. 154 (1997) ............................................................................................................. 23, 24 Christopher v. Smithkline Beecham Corp.

567 U.S. 142 (2012) ................................................................................................................... 14 Chrysler Corp. v. Brown

441 U.S. 281 (1979) ................................................................................................................... 26 E.I. du Pont de Nemours & Co. v. Train

430 U.S. 112, (1977) ............................................................................................................ 19, 20 Encino Motorcars, LLC v. Navarro

136 S.Ct. 2117 (2016) ................................................................................................................ 14 FCC v. Fox Television Stations, Inc.

556 U.S. 502 (2009). .................................................................................................................. 16 Motor Vehicle Mfrs Ass’n of U.S., Inc. v. State Mut. Auto. Ins. Co.

463 U.S. 29 (1983) ............................................................................................................... 17, 29 Perez v. Mortg. Bankers Ass’n

135 S. Ct. 1199 (2015). ........................................................................................................ 24, 26 PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology

511 U.S. 700 (1994) ............................................................................................................. 11, 12 Rapanos v. United States

547 U.S. 715 (2006) ................................................................................................. 26, 29, 30, 31 Ratzlaf v. United States

510 U.S. 135 (1994) ................................................................................................................... 11 Good Samaritan Hosp. v. Shalala

508 U.S. 402 (1993) ................................................................................................................... 29 Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs

531 U.S. 159 (2001) ................................................................................................................... 30

iv

U.S. Army Corps of Eng’rs v. Hawkes Co. 136 S.Ct. 1807 (2016) ................................................................................................................ 23

United States v. Nixon

418 U.S. 683 (1974) ................................................................................................................... 27

United States Courts of Appeals Cases Ackels v. EPA,

7 F.3d 862 (9th Cir. 1993) ............................................................................................................ 8 Am. Paper Inst., Inc. v. EPA

996 F.2d 346 (D.C. Cir.1993) .................................................................................................... 20 Am. Rivers, Inc. v. F.E.R.C.

129 F.3d 99 (2nd Cir. 1997) ................................................................................................... 8, 10 Batterton v. Marshall

648 F.2d 694 (D.C. Cir. 1980) ................................................................................................... 20 Ciba-Geigy Corp. v. EPA

801 F.2d 430 (D.C. Cir. 1986) ................................................................................................... 23 City of Tacoma, Wash. v. F.E.R.C.

460 F.3d 53 (D.C. Cir. 2006) ....................................................................................................... 8 Clean Air Council v. Pruitt

862 F.3d 1 (D.C. Cir. 2017) ................................................................................................. 23, 25 Council of S. Mountains, Inc. v. Donovan

653 F.2d 573 (D.C. Cir. 1981) ................................................................................................... 17 Envtl. Defense. Fund v. Ruckelshaus

439 F.2d 584 (D.C. Cir. 1971) ................................................................................................... 23 Fertilizer Institute v. EPA

935 F.2d 1303 (D.C. Cir. 1991) ................................................................................................. 27 Jicarilla Apache Nation v. U.S. Dep’t of Interior

613 F.3d. 1112 (D.C. Cir. 2010). ............................................................................................... 14 Keating v. F.E.R.C.

927 F.2d 616 (D.C. Cir. 1991) ..................................................................................................... 8 Marshall v. W. Union Tel. Co.

621 F.2d 1246 (3rd Cir. 1980).................................................................................................... 25

v

Nat. Res. Def. Council Inc. v.EPA 683 F.2d 752 (3rd Cir. 1982)...................................................................................................... 14

Nat’l Family Planning & Reprod. Health Ass’n v. Sullivan

979 F.2d 227 (D.C. Cir. 1992) ................................................................................................... 25 Nat’l Helium Corp. v. Fed. Energy Admin.

569 F.2d 1137 (Temp. Emer. Ct. App.1977) ............................................................................. 17 Nat’l Resources Def. Council v. EPA

863 F.2d 1420 (9th Cir.1988) ..................................................................................................... 20 Nat’l Resources Def. Council v. Abraham

355 F.3d 179 (2nd Cir. 2004) ..................................................................................................... 17 Ohio Valley Envtl. Coal. v. Aracoma Coal Co.

556 F.3d 177 (4th Cir. 2009) ...................................................................................................... 29 Price v. Stevedoring Servs. of Am., Inc.

697 F.3d 820 (9th Cir. 2012). ..................................................................................................... 14 Pub Citizen v. Steed

733 F.2d 93 (D.C. Cir. 1984) ..................................................................................................... 16 Roosevelt Campobello Int’l Park Comm’n v. EPA

684 F.2d 1041 (1st Cir. 1982) ................................................................................................ 9, 10 Rybachek v. EPA

904 F.2d 1276 (9th Cir. 1990) .............................................................................................. 21, 22 Riverkeeper, Inc. v. EPA

358 F.3d 174 (2nd Cir. 2004). .................................................................................................... 19 State of N.Y. v. Reilly

969 F.2d 1147 (D.C. Cir. 1992 ) ................................................................................................ 16 Summit Petroleum Corp. vs. EPA

690 F.3d 733 (6th Cir. 2012) ...................................................................................................... 26 Tex. Oil & Gas Ass'n v. EPA,

161 F.3d 923 (5th Cir. 1998) ................................................................................................ 20, 21

Federal District Court Cases Becerra v. United States Dep't of Interior

No. 17-CV-02376-EDL, 2017 WL 3891678, at *8 (N.D. Cal. Aug. 30, 2017) ................... 14, 15

vi

Sierra Club v. Jackson 833 F. Supp. 2d 11 (D. D.C. 2012) ...................................................................................... 15, 17

United States v. Zanger

767 F. Supp. 1030 (N.D. Cal. 1991) .......................................................................................... 31 W. Va. Coal Ass’n v. Reilly

728 F. Supp. 1276 (S.D. Va. 1989) ...................................................................................... 28, 29

State Cases Arnold Irrigation. Dist. v. Dep't of Envtl. Quality

717 P.2d 1274 (Or. Ct. App. 1986) ............................................................................................ 11 Northern Cheyenne Tribe v. Montana Dept. of Environmental Quality

234 P.3d 51 (Mont. 2010) .......................................................................................................... 20

United States Code

5 U.S.C. § 551 (2012) ................................................................................................. 17, 24, 25, 26 5 U.S.C. § 553 (2012) ........................................................................................... 17, 18, 22, 24, 25 5 U.S.C. § 704 (2012) ............................................................................................................. 23, 24 5 U.S.C. § 705 (2012) ........................................................................................... 12, 13, 14, 15, 16 5 U.S.C. § 706 (2012) ..................................................................................... 13, 15, 22, 24, 26, 27 33 U.S.C. § 1251 (2012) ........................................................................................... 8, 9, 11, 22, 29 33 U.S.C. § 1252 (2012) ............................................................................................................... 19 33 U.S.C. § 1311 (2012) ................................................................................................... 10, 19, 27 33 U.S.C. § 1313 (2012) ......................................................................................................... 11, 27 33 U.S.C. § 1314 (2012) ......................................................................................................... 20, 21 33 U.S.C. § 1341(2012) ............................................................................................................ 8, 10 33 U.S.C. § 1342 (2012) ............................................................................................................... 27 33 U.S.C. § 1344 (2012) ............................................................................................................... 32 33 U.S.C. § 1361 (2012) ............................................................................................................... 26

vii

33 U.S.C. § 1369 (2012) ................................................................................................................. 1 42 U.S.C. § 7607 (2012) ............................................................................................................... 26

Code of Federal Regulations 33 C.F.R. § 323.2 (2017) .............................................................................................................. 32 40 C.F.R. § 122.2 (2017) ............................................................................................ 22, 27, 31, 32 40 C.F.R. § 124.5 (2017) .......................................................................................................... 7, 11 40 C.F.R. § 124.19 (2017) .............................................................................................................. 1 40 C.F.R. § 124.55 (2017) ........................................................................................................ 8, 10 40 C.F.R. § 125.3 (2017) ........................................................................................................ 19, 21 40 C.F.R. § 401.15 (2017) ............................................................................................................ 19 40 C.F.R. § 423.16 (2017) ...................................................................................................... 12, 13

Federal Register

Consolidated Permit Regulations, 45 Fed. Reg. 48,620 (July 21, 1980) (codified at 40 C.F.R. pt. 122) ................................................................................................................ 22, 24, 25, 26

Consolidated Permit Regulations: CWA National Pollutant Discharge Elimination System; CWA

Section 404 Dredge or Fill Programs, 45 Fed. Reg. 33,290 (May 19, 1980) (codified at 40 C.F.R. pts. 122, 123, 124, 125) ................................................................................... 26, 28

Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point

Source Category, 80 Fed. Reg. 67,838 (Nov. 3, 2015) (codified at 40 C.F.R. pt. 423) . 13, 16

National Emissions Standards for Hazardous Air Pollutants From Portland Cement

Manufacturing Industry and Standards of Performance for Portland Cement Plants, 76 Fed. Reg. 28,318 (May 17, 2011) ............................................................................... 13, 14

Postponement of Certain Compliance Dates for Effluent Limitations Guidelines and Standards

for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 19,005 (Apr. 25, 2017) (to be codified at 40 C.F.R. pt. 423) ......................... 12, 13, 15, 16, 17, 18

viii

Other Sources of Authority Administrative Procedure Act, Pub. L. 1944–46, S. Doc. 248 at 277 (1946) (referring to 5 U.S.C.

§ 1009(d), the prior version of 5 U.S.C. § 705 ................................................................. 15 Andrew H. Sawyer, Rock Creek Revisited: State Water Quality Certification of Hydroelectric

Projects in California, 25 Pac. L.J. 973, 1007 (1994). ....................................................... 9 Br. Inst. Policy Integrity at New York Univ. Sch. Law as Amicus Curiae in Support of Pls’ Mot.

Summ. J. at 18, Clean Water Action, et al. v Pruitt, No. 17-00817, (D.D.C. June 27, 2017) ................................................................................................................................. 15

Debra L. Donahue, The Untapped Power of the Clean Water Act Section 401, 43 Ecology L.Q.

201, 252 (1996) ................................................................................................................. 10 Office of Solid Waste and Emergency Response, EPA, Closure of a Doe Surface Impoundment

Unit That Has Lost Interim Status (April 2, 1986) .......................................................... 28 Office of Wetlands, Oceans and Watersheds, EPA, Clean Water Act Section 401 Water Quality

Certification: A Water Quality Protection Tool for States and Tribes (2010) ...... 9, 11, 12 Pls.’ Mot. Summ. J., Clean Water Action, et al. v Pruitt, No. 17-cv-00817 (D. D.C. June 14,

2017) ................................................................................................................................. 14 S. Rep. No. 92-414, at 69 (1971) ................................................................................................. 10 2 William H. Rogers, Environmental Law: Air and Water § 4.2 at 26 (1986) .............................. 9

1

STATEMENT OF JURISDICTION

The EPA has delegated its permit-reviewing power to the Environmental Appeals Board

(EAB), thus granting the board subject-matter jurisdiction over National Pollutant Discharge

Elimination System (NPDES) permits. 40 C.F.R. § 124.19 (2017); see 33 U.S.C. § 1369 (2012).

Both petitioners timely filed for review of the Board’s order, In re EnerProg, L.L.C., No. 17-

0123, slip op. at 1 (EAB 2017), so this Court has jurisdiction over all “final action[s]” taken

under the CWA by the EPA. See 33 U.S.C. § 1369.

STATEMENT OF THE ISSUES

I. Whether the Final Permit properly included conditions necessitating the closure and

remediation of the coal ash pond as provided by the State of Progress in the CWA

section 401 certification.

II. Whether the April 25, 2017 EPA notice suspending compliance deadlines for the

2015 Effluent Limitation Guidelines for the Steam Electric Power Generating

Industry is effective to require the suspension of permit compliance deadlines.

III. Whether EPA Region XII could rely on Best Professional Judgment as a valid ground

to require zero discharge of coal ash transport wastes.

IV. Whether NPDES permitting requirements apply to EnerProg’s pollutant discharges

into the MEGS ash pond, in light of EPA’s July 21, 1980 suspension of the waste

treatment provision.

V. Whether a permit is required for the ash pond closure and capping plan for the

discharge of fill material pursuant to section 404 of the CWA.

2

STATEMENT OF THE FACTS

This appeal centers on the waters of Fossil, Progress. R. at 6. In Fossil, Fossil Creek is a

perennial tributary to the Progress River, a navigable-in-fact interstate body of water. R. at 7.

The Moutard Reservoir is located in Fossil, Progress. Id.

The Moutard Electric Generating Station

In Fossil, there is a coal-fired steam electric power plant called the Moutard Electric

Generating Station (MEGS). R. at 7. EnerProg, L.L.C., operates the MEGS plant. Id. The

facility produces a maximum dependable capacity of 745 megawatts (MW). Id. Water for the

plant is withdrawn from the Moutard Reservoir to make up for evaporative losses from the

cooling tower, boiler water, ash transport water, and drinking water needs. Id. The MEGS

facility has a wet fly ash handling system and a wet bottom ash handling system, which uses

water to sluice ash solid through pipes to one ash pond, where the transport water undergoes

treatment by sedimentation before it is discharged to the Moutard Reservoir. Id. In June, 1978,

the ash pond was created by damming the then free-flowing tributary of Fossil Creek. Id.

Outfalls

The MEGS facility operates the following five outfalls, or discharge points. R. at 7, 8.

Outfall 001 is the cooling tower system that consists of cooling towers and a circulating water

system. R. at 7. The cooling towers and circulating water system are drained by gravity and

discharged directly to Moutard Reservoir once a year. Id. Outfall 002 is the ash pond treatment

system. Id. The ash pond receives ash transport water containing bottom ash and fly ash, coal

pile runoff, stormwater runoff, cooling tower blowdown, flue gas desulfurization (FGD)

wastewater and various low volume wastes. Id. at 7, 8. Internal Outfall 008 is the fly ash and

bottom ash transport water system and cooling tower blowdown. Id. at 8. The cooling tower

3

blowdown is mixed with ash sluice water prior to discharging into the ash pond. Id. These

waste streams and ash transport water are directly discharged to the ash pond. R. at 8. The ash

transport flows from this outfall will be eliminated upon completion of conversion to dry ash

transport handling, which will dispose fly ash and bottom ash into a dry landfill. Id.

Internal outfall 009 is the discharge from the FGD blowdown treatment system to the ash

pond. Id. The FGD blowdown is indirectly discharged to the Moutard Reservoir via the ash

pond treatment system of Outfall 002. Id. Outfall 002A, once construction is complete, will

discharge from the newly lined retention basin. Id. The flows from the ash pond will be re-

directed to the retention basin when the construction of the basin is competed. Id. The ash pond

will no longer accept wastewater once construction is completed. Id. The wastewater from this

outfall discharges to the Moutard Reservoir via Outfall 002. R. at 8.

NPDES permit and State of Progress certification

On January 18, 2017, EPA Region XII issued a federal National Pollutant Discharge

Elimination System (NPDES) permit pursuant to section 402 of the Clean Water Act (CWA).

Id. at 6. The permit authorizes EnerProg to continue water pollution discharges associated with

MEGS. Id. In addition, the State of Progress issued a certification pursuant to section 401 of the

CWA for the renewal issuance of the MEGS NPDES permit. Id. at 8. One of the conditions on

Progress’ Section 401 certification is that, in order to comply with the Progress Coal Ash Clean

Act (CACA)1, EnerProg must cease operation of its ash pond by November 1, 2018, complete

dewatering of its ash pond by September 1, 2019, and cover the dewatered ash pond with an

impermeable cap by September 1, 2020. Id. The final permit required:

By November 1, 2018 there shall be no discharge of pollutants in fly ash transport water. This requirement only applies to fly ash transport water generated after

1 CACA is a state-enacted law requiring assessment, closure, and remediation of substandard coal ash disposal facilities in the State of Progress. R. at 8.

4

November 1, 2018. By November 1, 2018 there shall be no discharge of pollutants in bottom ash transport water. This requirement only applies to bottom ash transport water generated after November 1, 2018. * * * Special Condition A: EnerProg must cease operation of its ash pond by November 1, 2018, complete dewatering of its ash pond by September 1, 2019, and cover the dewatered ash pond with an impermeable cap by September 1, 2020. In addition, the final permit authorized the continued use of internal outfall 008 to transport bottom and fly ash to the coal ash pond without any effluent limits on an interim basis until closure of the coal ash treatment pond on November 1, 2018. Id.

2015 revised ELG for Steam Electric Power Generating Point Source Category

Under 40 C.F.R. 423, Best Available Technology (BAT) for toxic discharges associated

with bottom ash and fly ash is zero discharge, based on the available technology of dry handling

of these wastes. R. at 9. The 2014 Steam Electric Power Generating Point Source Category

ELGs are the subject of an industry challenge that is pending in the Fifth Circuit. R. at 9

Procedural History

On April 1, 2017, EnerProg and Fossil Creek Watchers, Inc. (FCW), filed petitions for

review of this case to the Environmental Appeals Board (EAB) regarding NPDES permit

pursuant to 40 C.F.R. part 124, requesting on a number of grounds that the permit be remanded

to Region XII for further consideration. R. at 6. Both EnerProg and FCW filed supplemental

briefing with regards to the April 25, 2017 Notice of the suspension of the 2015 ELG compliance

deadline. Id. The Environmental Appeals Board denied the petitions for review in the Spring of

2017. Id. Both EnerProg and FCW filed petitions pursuant to 509(b) of the CWA to seek

judicial review o the final decision of the Environmental Appeals Board to the United States

Court of Appeals for the Twelfth Circuit. R. at 2. On September 1, 2017, the United States

Court of Appeals for the Twelfth Circuit granted and consolidated the petitions for briefing and

oral argument. R. at 2, 3.

5

SUMMARY OF THE ARGUMENT

EnerProg’s final NPDES permit must include state certification conditions adopted

pursuant to the State of Progress’ Coal Ash Cleanup Act. The EPA lacks authority to review the

appropriateness of state certification conditions. CWA 401(d) is intended to provide states with

a means to enforce stricter requirements upon a federally licensed activity impactful of local

water quality. Courts interpret the provision’s mandatory language as prohibiting substantive

review of state certification conditions. Review is permitted on the state level. Even though

Progress lacks a well-defined review procedure in the state court system, the EPA may respond

to EnerProg’s grievances through denial of the permit in its entirety. In the event that this Court

allows the EPA to review the State of Progress’ certification conditions, the measures adopted to

comply with CACA constitute appropriate requirements of state law. The EPA interprets 401(d)

as inclusive of state and local measures adopted independently of state water quality standards

promulgated pursuant to the CWA. Progress maintains discretion to enforce conditions related

to water quality. The expedited closure deadline, as well as the requirements that EnerProg

cover and cap its coal ash pond, are requirements adopted with the purpose of protecting local

water quality. Such stringent measures are intended to protect Progress’ ground and surface

water resources.

The EPA’s April 2017 Delay Notice does not suspend the permit condition requiring

EnerProg to implement dry handling by November 1, 2018. The compliance deadline is required

as a state certification condition to EnerProg’s NDPES permit. Further, the April 2017 Delay

Notice must be vacated as an unlawful agency action. The EPA lacked statutory authority to

stay compliance deadlines after the passage of the 2015 ELG’s effective date of January 4, 2016.

Section 705 of the Administrative Procedure Act only permits imposition of a stay before the

6

passage of a final rule’s effective date. In imposing the indefinite stay, the EPA failed to

demonstrate that justice required delay. The EPA did not properly address the costs or foregone

benefits resulting from the 2015 ELG’s delay. Additionally, the EPA failed to comply with the

requirements that the public receive notice and an opportunity to comment upon the rule’s

repeal. Therefore, the agency’s action must be set aside as arbitrary and capricious and the 2015

ELG’s compliance deadlines remain in effect.

EPA Region XII can properly rely on best professional judgment as an alternative ground

to require zero discharge of coal ash transport wastes, independent of the 2015 ELGs. The EPA

Region XII permit writer has the authority under the Clean Water Act to impose Best Available

Technology Economically Achievable Limitations on nonconventional pollutants. On a case-by-

case basis, an ELG of the team electric power generating industry does not have to be

incorporated into the NPDES permit and the EPA can issue a variance on the NPDES permit.

Because EPA Region XII appropriately determined zero discharge requirement, EPA Region XII

can rely on Best Professional Judgment (BPJ) independent of the guidelines.

Discharges into the MEGS coal ash pond require a NPDES permit because the ash pond,

as an impoundment of Fossil Creek, meets the definition of a water of the United States. EPA

regulations allow waste treatment ponds to be excluded from the definition of waters of the U.S.,

but only so long as they are manmade; impoundments do not qualify for the exclusion. The EPA

unlawfully suspended the latter portion of the definition in July 1980 because it did not abide by

the procedural requirements of the Administrative Procedure Act. Moreover, the EPA possessed

no statutory authority to implement a stay or suspension. Therefore, this Court should vacate the

suspension and give effect to the full definition as it was lawfully enacted. However, even if the

7

Court finds the suspension can be given effect, the ash pond still satisfies the definition of waters

of the United States.

Because the MEGS ash pond should be considered a water of the United States, a 404

permit is necessary to fill the ash pond with coal ash solids. The ash pond is a water of the

United States but is not regulated as such only because it falls under the waste treatment

exemption. The proposed cap and fill plan for the ash pond would end the coal ash pond’s use as

a waste treatment pond. Because the ash pond would no longer qualify for the exemption, it

should be treated as if it never fell under it in the first place—a water of the United States. The

proposed cap and fill plan will change the bottom elevation and replace a water of the United

States with dry land. Therefore, a 404 permit is required to implement the plan.

ARGUMENT

I. STATE OF PROGRESS’ CERTIFICATION CONDITIONS MUST BE INCLUDED IN ENERPROG’S NPDES PERMIT

The EPA is not permitted to reject state certification conditions for lack of appropriateness.

33 U.S.C. § 1341(d) (2012). CWA 401(d) allows state to enforce stronger requirements on

federal activity that impacts local water sources. Id. Further, the conditions adopted to adhere to

CACA are appropriate requirements of state law. Id.; 40 C.F.R. § 124.5 (2017). State measures

adopted independently of state water quality standards promulgated pursuant to the CWA may

serve as certification conditions if related to protection of water quality. See Office of Wetlands,

Oceans and Watersheds, EPA, Clean Water Act Section 401 Water Quality Certification: A

Water Quality Protection Tool for States and Tribes (2010) (“401 Water Quality Certification”)

at 23. The measures adopted pursuant to CACA are intended to protect Progress’ ground and

surface water. See R. at 8, 9.

8

A. The EPA Lacks Authority to Review State Certification Conditions Based upon the mandatory language of Clean Water Act Section 401(d), the EPA lacks

discretion to review the State of Progress’ certification conditions for Enerprog’s NPDES permit.

33 U.S.C. § 1341(d) (2012). Section 401(d) provides that state conditions upon certification

“shall” be included in final permits. Id. Such mandatory language reflects congressional intent

that federal licensing align with more rigorous, local efforts to protect water quality. See 33

U.S.C. §§1251(g), 1370 (2012). In interpreting Section 401(d), courts consistently preclude

federal agencies from substantive review of state certification conditions. Am. Rivers, Inc. v.

F.E.R.C., 129 F.3d 99, 110–11 (2d Cir. 1997) (holding that Congress failed to delegate Federal

Energy Regulatory Commission with discretion to review substantive state certification

conditions); Ackels v. EPA, 7 F.3d 862, 867 (9th Cir. 1993) (requiring EPA to incorporate

additional state permit conditions); cf. City of Tacoma, Wash. v. F.E.R.C., 460 F.3d 53, 68 (D.C.

Cir. 2006) (limiting FERC review to state compliance with 401(a)(1) requirement that state issue

notice for certification applications); Keating v. F.E.R.C., 927 F.2d 616, 625 (D.C. Cir. 1991)

(narrowing agency review to state compliance with 401(a)(3) timeliness requirement due to

withdrawal of certificate before issuance of license). Federal agencies may wholly deny a

permit, rather than reject conditions based upon unfamiliar state law. 40 C.F.R. 124.55(e) (2017)

(prohibiting federal agency review of state certification conditions); Am. Rivers, Inc., 129 F.3d

99 at 112. Thus, if allowed, EnerProg’s 402 NPDES permit must be conditioned upon

compliance with a November 1, 2018 zero discharge deadline, dewatering, covering, and

capping of its ash pond as required by the State of Progress’ Coal Ash Cleanup Act (“CACA”).

R. at 8, 9.

9

The CWA’s goal in preservation of states’ ability to enact more rigorous pollution

controls is advanced by Section 401(d)’s prohibition on federal agency review of state

certification conditions. Roosevelt Campobello Int’l Park Comm’n v. EPA, 684 F.2d 1041, 1056

(1st Cir. 1982) (holding that CWA statutory scheme supported conclusion that EPA lacked

authority to review state certification conditions). According to CWA Section 101(b), Congress

intended the states to retain primary responsibility for pollution elimination and development of

natural resources. 33 U.S.C. § 1251(b). Further, in CWA Section 101(g), Congress expressly

provides that no CWA provision is to interfere with state authority to “allocate quantities of

water within its own jurisdiction.” Id. at § 1251(g). Most importantly, CWA Section 510

provides that no CWA provision may interfere with a state’s ability to promulgate and enforce its

own controls, provided such measures are equal to or more stringent than federal standards. Id. at

§ 1370. In effect, the state certification process under 401(d) is merely a tool to allow a state to

enforce more exacting controls as required by CWA Section 510. See 2 William H. Rogers,

Environmental Law: Air and Water § 4.2 at 26 (1986) (arguing that the state certification

conditions under 401 “add muscle to the no-preemption pretensions of section 510”). Allowing

the EPA to modify state certification conditions interferes with states’ primary enforcement role

as contemplated by the CWA. 33 U.S.C. §§ 1251(b)-(e), 1370. The legislative history

accompanying 410(d) demonstrates congressional intent that the state certification process serve

as a check upon federal projects with potential to impact local water quality. See Andrew H.

Sawyer, Rock Creek Revisited: State Water Quality Certification of Hydroelectric Projects in

California, 25 Pac. L.J. 973, 1007 (1994). In devising the mandatory language of 410(d),

legislators noted that the state certification process served as a means to ensure that licenses and

10

permits complied with more rigorous requirements as contemplated by the states. S. Rep. No.

92-414, at 69 (1971).

In alignment with congressional intent, federal courts interpret 410(d) as limiting any

substantive review of state certification conditions by federal agencies, including the EPA. Am.

Rivers, Inc., 129 F.3d at 110–11; Roosevelt Campobello Int’l Park Comm, 684 F.2d at 1056. The

EPA is explicitly prohibited from holding an adjudicatory hearing on state certification

conditions. 40 C.F.R. 124.55 (e). Any substantive review must occur through the “applicable

procedures of the state.” Id. Although EnerProg argues that it lacks a means to challenge the

conditions due to the absence of review procedure in state court, it might still pursue review

through a state administrative hearing. R. at 10, 11. The EPA does not specify that review in a

state court is required, but merely that review occur through a state’s applicable procedures,

which may include an administrative hearing. 40 C.F.R. 124.55(e). Moreover, even in the

absence of judicial review at the state level, agencies maintain discretion to deny a permit. Am.

Rivers, Inc. 129 F.3d at 112.

B. CACA Requirements are “Appropriate” Requirements of State Law as Required by CWA 401(d) and May be Properly Attached as Certification Conditions

EnerProg erroneously interprets appropriate state certification conditions as limited to

requirements based on achieving state water quality standards established under CWA section

303. See 33 U.S.C. § 1311 (2012). CWA section 401(d) imbues states with discretion to attach

conditions upon certification intended to force compliance with “other limitations” adopted

pursuant to the CWA as well as “other requirements of state law.” Id. at § 1341. The

aforementioned terms are purposefully separate and should be treated as such because “statutory

terms should be interpreted without rendering superfluous other provisions in the statute.” See

Debra L. Donahue, The Untapped Power of the Clean Water Act Section 401, 43 Ecology L.Q.

11

201, 252 (1996) (citing Ratzlaf v. United States, 510 U.S. 135, 141 (1994)). In its promulgation

of 40 C.F.R. § 124.5, the EPA again refers to these categories separately, indicating that state

certifications are to include both conditions “necessary to assure compliance with applicable

provisions of CWA… and with appropriate requirements of state law.” 40 C.F.R. § 124.5. To

interpret these terms separately advances the legislative purpose of the CWA in encouraging

states to enact more rigorous controls and “preserve state authority over water quality and water

allocation.” 33 U.S.C. § 1251(g).

The State of Progress maintains discretion to determine the appropriateness of permit

conditions based on its own state law requirements. See 401 Water Quality Certification at 23.

While state authority to attach permit conditions is not “unbounded”, the EPA has interpreted the

401(d) term “other appropriate requirements of State law” as inclusive of state and local controls

beyond those promulgated in compliance with CWA 303(d) or specific effluent limitations. See

33 U.S.C. § 1313 (2012); PUD No. 1 of Jefferson Cty v. Wash. Dep’t of Ecology, 511 U.S. 700,

712 (1994); 401 Water Quality Certification, at 23. Any provision of state law that is related to

protection of an aquatic resource may be adopted as a certification condition. 401 Water Quality

Certification, at 23. Each state may independently define considerations relevant to state

certification. See id. In a broad application of 401(d), some states or tribes adopt permit

conditions for the purpose of preserving endangered species. See id. In states adopting a liberal

application of 401(d), a state permit condition may still be deemed inappropriate, “if a goal or a

plan has absolutely no relationship to water quality.” Arnold Irrigation Dist. v. Dep't of Envtl.

Quality, 717 P.2d 1274, 1279 (Or. Ct. App. 1986).

The permit conditions adopted pursuant to Progress’ Coal Ash Cleanup Act are closely

related to the preservation of state water quality. R. at 8, 9. Progress explicitly adopted CACA

12

for the purpose of protecting surface and ground waters from the effects of ash treatment pond

containment systems and leaks. Id. State permit conditions adopted pursuant to 401(d) may

regulate any activity related to discharge, not merely the discharge itself. See PUD No. 1 of

Jefferson Cty., 511 U.S. at 726. The permit conditions requiring pond closure, cover and

capping are all closely attenuated to protection of Progress’ water quality. 401 Water Quality

Certification, at 23; R. at 8, 9. An expedited closure date decreases the likelihood that toxic

pollutants such as mercury, arsenic, selenium will be released into Progress’ surface or ground

water sources. 401 Water Quality Certification, at 23; R. at 8, 9. Cover and capping also

advance this purpose, as any remaining pollutants are less likely to enter Progress’ aquatic

resources. See R. at 8, 9. By allowing Progress to adopt these permit conditions sufficiently

related to water quality, the underlying goal of the CWA in preserving states’ right to adopt more

stringent controls is advanced. 33 U.S.C. § 1370; 401 Water Quality Certification, at 23; R. at 8,

9.

II. THE APRIL 2017 DELAY NOTICE MUST BE VACATED BECAUSE THE EPA FAILED TO STATE AN ADEQUATE BASIS FOR ITS ACTION OR PROVIDE THE PUBLIC WITH NOTICE OR AN OPPORTUNITY FOR COMMENT In the event that this Court rejects Progress’ 401 certification conditions, the April 2017

Notice does not suspend the 2015 Effluent Guidelines’ November 1, 2018 compliance deadline

for suspension of both fly ash and bottom ash discharge. 40 C.F.R. § 423.16(e)-(i) (2017);

Postponement of Certain Compliance Dates for Effluent Limitations Guidelines and Standards

for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 19,005 (Apr. 25,

2017) (to be codified at 40 C.F.R. pt. 423). The EPA lacked the statutory authority under the

Administrative Procedure Act (APA) to stay compliance deadlines after the passage of the rule’s

effective date. See U.S.C. § 705 (2012). In issuing the April Notice, the EPA did not make the

13

necessary finding that “justice” required imposition of the stay under APA § 705. See id. The

EPA acted arbitrarily and capriciously in violation of APA § 706 through failure to adequately

justify its decision to rescind the 2015 ELG compliance deadlines or provide the public with

proper notice or an opportunity to comment. See 5 U.S.C. § 706 (2012). Therefore, the EPA’s

infinite stay of the 2015 Effluent Rule compliance deadlines must be set aside as an unlawful

agency action. See id.

A. EPA Lacked Authority to Impose APA 705 Judicial Stay Upon Compliance Dates After Passage of Effluent Rule’s ‘Effective Date’

In its April 2017 Notice, the EPA improperly invoked Section 705 of the APA, which

allows an agency to “postpone the effective date of action taken by it, pending judicial review.”

See 5 U.S.C. § 705. In effect, the April 2017 Notice indefinitely stayed compliance dates

promulgated under the 2015 ELGs. 40 C.F.R. § 423.16(e)-(i) (establishing compliance date for

BAT limits for fly ash, bottom ash wastewater as November 1, 2018); Postponement of Certain

Compliance Dates for Effluent Limitations Guidelines and Standards for the Steam Electric

Power Generating Point Source Category, 82 Fed. Reg. at 19,005. Section 705 does not permit

imposition of stay upon compliance dates after the passage of a rule’s effective date. 5 U.S.C.

§ 705; National Emissions Standards for Hazardous Air Pollutants From Portland Cement

Manufacturing Industry and Standards of Performance for Portland Cement Plants, 76 Fed. Reg.

28,318, 28,326 (May 17, 2011) (interpreting APA 705 as inapplicable after passage of rule’s

effective date). The present rule became effective on January 4, 2016, prior to the EPA’s

issuance of the Notice. Effluent Limitations Guidelines and Standards for the Steam Electric

Power Generating Point Source Category, 80 Fed. Reg. 67,838 (Nov. 3, 2015) (codified at 40

C.F.R. pt. 423). APA Section 705 does not include the term “compliance date” but rather refers

exclusively to suspension of “effective date(s).” 5 U.S.C. § 705. This Court should refrain from

14

“reading words or elements into a statute that do not appear on its face” and prohibit imposition

of a stay of compliance dates, based on a plain reading of APA Section 705. Id.; Becerra v.

United States Dep't of Interior, No. 17-CV-02376-EDL, 2017 WL 3891678, at *8 (N.D. Cal.

Aug. 30, 2017) (citing Bates v. United States, 522 U.S. 23, 29 (1997)).

If agencies are permitted to use the APA 705 to stay compliance deadlines, effective

dates will no longer carry their intended legal consequence. Nat. Res. Def. Council Inc. v. EPA,

683 F.2d 752, 762 (3rd Cir. 1982). The effective date of a final rule is promulgated as the result

of a formal rulemaking and is intended to carry future effect and guide the implementation

process. Id. A reading of “effective date” as inclusive of future compliance dates distorts the

underlying purpose of the APA by preventing the “notice and predictability to regulated parties

that formal rulemaking is meant to promote.” Price v. Stevedoring Servs. of Am., Inc. 697 F.3d

820, 830 (9th Cir. 2012) (quoting Christopher v. Smithkline Beecham Corp., 567 U.S. 142, 167

(2012)). In the absence of a clear date of implementation, parties subject to a proposed rule

might not undertake the necessary steps to adhere to it. Nat. Res Def Council Inc., 683 F.2d at

762. Accordingly, the EPA has interpreted APA § 705 as inapplicable to postpone a rule’s

implementation after the passage of its effective date. See National Emissions Standards for

Hazardous Air Pollutants From Portland Cement Manufacturing Industry and Standards of

Performance for Portland Cement Plants, 76 Fed. Reg. at 28,326. Without a reasoned

explanation for a change in its interpretation of APA § 705, an agency may not abandon its

previous position. Pls.’ Mot. Summ. J. at 22, Clean Water Action, et al. v Pruitt, No. 17-cv-

00817 (D.D.C. June 14, 2017) (citing Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2125–

26 (2016), Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d. 1112, 1119 (D.C. Cir.

2010).

15

In its Notice, the EPA has not articulated a reasoned explanation for the change in its

interpretation of APA 705. Postponement of Certain Compliance Dates for Effluent Limitations

Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 82

Fed. Reg. at 19,005. In issuing its Notice, the EPA argues that imposition of stay of future

compliance deadlines pursuant to APA § 705 is necessary to “preserve the regulatory status quo

with respect to waste streams. . . .” Id. APA § 705’s legislative history demonstrates that

imposition of a judicial stay is permissible to “maintain the status quo, if the proper showing be

made.” Administrative Procedure Act, Pub. L. 1944–46, S. Doc. 248 at 277 (1946) (referring to

5 U.S.C. § 1009(d), the prior version of 5 U.S.C. § 705). Rather than preserve the regulatory

status quo, the Notice unlawfully “restore(s) a prior regulatory regime” without undergoing the

procedures required by the APA for final rule repeal. Becerra, 2017 WL 3891678, at *9.

EnerProg’s obligations to begin implementing the technology necessary to comply with the zero

discharge requirement began on January 4, 2016, signally a distinct change in the regulatory

status quo. See Br. Inst. Policy Integrity at New York Univ. Sch. Law as Amicus Curiae in

Support of Pls’ Mot. Summ. J. at 18, Clean Water Action v Pruitt, No. 17-00817, (D.D.C. June

27, 2017).

B. The April Notice Should Be Vacated as an Unlawful Agency Action Because the EPA Acted Arbitrarily & Capriciously in its Failure to Provide an Adequate Justification for Imposition of its Stay Pending Reconsideration

The EPA’s April Notice is ineffective in imposing a stay of the 2015 Effluent Guidelines

because the agency failed to demonstrate that justice required such a stay pending judicial

review. See 5 U.S.C. § 705. The EPA failed to make the proper findings to adequately justify its

imposition and therefore the action must be set as aside an arbitrary and capricious. 5 U.S.C.

706(2)(A); Sierra Club v. Jackson, 833 F. Supp. 2d 11, 17 (D.D.C. 2012). In order to impose a

16

stay under 5 U.S.C. 705, the agency must satisfy the four part test necessary for imposition of a

preliminary injunction. See id. Rather than attempt to satisfy this test, in its 2017 Notice, the

EPA merely relied upon the “capital expenditures” that industry actors “will need to undertake in

order to meet deadlines” without specifying the extent of those costs or the likelihood of the

petitioners’ success. Postponement of Certain Compliance Dates for Effluent Limitations

Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 82

Fed. Reg. at 19,005.

Additionally, the EPA acted arbitrarily and capriciously through its failure to provide a

“reasoned explanation for disregarding the facts and circumstances that underlay or were

engendered” by the 2015 Final Effluent Guidelines. FCC v. Fox Television Stations, Inc., 556,

U.S. 502, 515 (2009). When rescinding a regulation, agencies are required to explain the

rationale for its change in course. Pub Citizen v. Steed, 733 F.2d 93, 98 (D.C. Cir. 1984). In its

Notice, the EPA bases its decision to stay upon the large capital expenditures to be undertaken

by industry actors, while failing to address the previous findings that compliance is economically

feasible. Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating

Point Source Category, 80 Fed. Reg. at 67,838. The EPA did not address any foregone benefits

to the public that potentially occurred as the result of infinite delay. State of NY v. Reilly, 969

F.2d 1147, 1153 (D.C. Cir. 1992 ) (requiring agency to consider foregone benefits as well as

economic benefits to industry). According to the EPA’s findings underlying the 2015 ELG, the

rule was to yield $102.9 million year in benefits, including lowered health care and cleanup

costs. Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating

Point Source Category, 80 Fed. Reg. at 67,873-75, 67,877-78. Without proper consideration of

the rule’s costs and benefits, the EPA failed to demonstrate rational connection between “the

17

facts found and the choices made.” Motor Vehicle Mfrs Ass’n v. State Mut. Auto. Ins. Co., 463

U.S 29, 43 (1983). Therefore, the 2017 Delay Notice must be vacated and the 2015 Effluent

Guidelines remain applicable to EnerProg. See id.

C. The April Notice Should be Vacated Because the EPA Failed to Comply with the Notice and Comment Requirements of 553(b)-(c) Required for Issuance of Substantive Rulemaking

The EPA’s April 2017 Notice is subject to requirements that an agency provide the public

with advance notice and opportunity for comment. 5 U.S.C. § 553(b), (c) (2012). The EPA

seeks to characterize its notice as a “temporary stay to preserve the status quo.” Sierra Club v.

Jackson, 833 F. Supp. 2d at 28; Postponement of Certain Compliance Dates for Effluent

Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source

Category, 82 Fed. Reg. at 19,005. Because the suspension of the 2015 Rule’s compliance

deadlines is seemingly indefinite and results in “palpable effects upon the regulated industry and

the public in general,” it must treated as a final rulemaking and vacated due to clear violation of

553(b)-(c). 5 U.S.C. § 553(b); Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 580 n.

28 (D.C. Cir. 1981) (quoting Nat’l Helium Corp. v. Fed. Energy Admin., 569 F.2d 1137, 1146

(Temp. Emer. Ct. App. 1977).

EnerProg mischaracterizes the effect of the EPA’s Notice as a temporary preservation of

the status quo. Postponement of Certain Compliance Dates for Effluent Limitations Guidelines

and Standards for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. at

19,005. Under the APA, a repeal of a rule is treated as a separate rulemaking and is subject to

the same procedural requirements. 5 U.S.C. § 551(5). The EPA’s April 2017 Notice suspending

the rule’s compliance deadlines is an action repeatedly characterized as “tantamount to an

amendment or rescission of the rule.” See Nat’l Resources Def. Council v. Abraham, 355 F.3d

179, 194 (2nd Cir. 2004). The EPA’s Notice may be properly characterized as a final

18

amendment to the Rule, rather than a “temporary preservation of the status quo” because the

effective date of compliance passed in January 2016. See id. Despite this, the EPA failed to set

new compliance deadlines for regulated industry under the Rule. Postponement of Certain

Compliance Dates for Effluent Limitations Guidelines and Standards for the Steam Electric

Power Generating Point Source Category, 82 Fed. Reg. at 19,005. Rather, the EPA stayed

implementation pending judicial review and then acted to enjoin the Fifth Circuit from review by

holding the matter in abeyance. Consolidation Order, Sw. Elec. Power Co. v. EPA, No. 15-

60821, ECF Doc. 00513964356 (5th Cir. Apr. 24, 2017).

In effect, the compliance deadlines are infinitely stayed and therefore must be treated as a

final rule subject to notice and comment requirements. 5 U.S.C. § 553(b)(c). The April 2017

Notice’s significant impact upon the public underlies the importance of compliance with notice

and comment procedures in this instance. Effluent Limitations Guidelines and Standards for the

Steam Electric Power Generating Point Source Category, 80 Fed. Reg. at 67,873-75, 67,877-78.

The 2015 Effluent Rule emerged as the result of years of intensive study and public comment.

See id. By indefinitely delaying the rule’s compliance deadlines after the passage of the effective

date of implementation, the agency’s action effectively “jeopardizes the rights and interests of

the parties”, in this case both regulated industry and the general public. Batterton v. Marshall,

648 F.2d 694, 708 (D.C. Cir. 1980). If provided with the opportunity to comment upon the

EPA’s proposal to infinitely delay, members of the public may conclude that based on the

agency’s presented data that implementation within previously proposed deadlines is preferable.

19

III. EPA REGION XII CAN PROPERLY RELY ON BEST PROFESSIONAL JUDGMENT AS AN ALTERNATIVE GROUND TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES, INDEPENDENT OF THE APPLICABILITY OR EFFECTIVENESS OF THE 2015 STEAM ELECTRIC POWER GENERATING INDUSTRY EFFLUENT LIMITATION GUIDELINES Under 40 C.F.R. § 125.3(c)(3), EPA Region XII can properly rely on Best Professional

Judgment to require zero discharge for ash transport and treatment wastes as pollutants are

appropriately subject to BPJ standards. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 198 (2d Cir.

2004); 40 C.F.T. §125.3(c)(3) (2017). Under the plain language of the CWA, effluent limitations

shall “require the application of the best available technology economically achievable for such

category or class, which will result in reasonable further progress toward the national goal of

eliminating the discharge of all pollutants.” 33 U.S.C. §1311(b). Independent of the 2015

Effluent Limitation Guidelines, the EPA Region XII permit writer has the authority to impose

best available technology economically achievable limitations on nonconventional pollutants.

See 33 U.S.C. § 1311(b)(2)(F). The discharge from the MEGS coal ash pond contains mercury,

arsenic, and selenium, which are all listed toxic pollutants pursuant to pursuant to section §

307(a)(1) of the Clean Water Act. See 40 C.F.R. § 401.15 (2017). Therefore, this Court should

affirm the Environmental Appeals Board’s decision to uphold the zero discharge for ash

transport and treatment wastes of the MEGS facility. See id.

A. EPA Region XII Has the Authority to Set the Discharge for Ash Transport and Treatment Wastes to Zero Discharge on a Case-by-Case Basis Independent of the ELG Set for the Category of the point source

The general purpose of the Clean Water Act charges the EPA with “preventing, reducing,

or eliminating the pollution of the navigable waters and ground waters and improving the

sanitary condition of surface and underground waters.” 33 U.S.C. § 1252(a) (2012); see also E.I.

du Pont de Nemours & Co. v. Train, 430 U.S. 112, 116, (1977) (noting that Congress's goal in

20

enacting the Clean Water Act was to eliminate by 1985 all pollutant discharges into the nation's

waters). The EPA uses permits to accomplish this general purpose. E.I. du Pont de Nemours &

Co., 430 U.S. at 166. Under this purpose to eliminate pollution of navigable waters, the EPA

establishes effluent limitations in one of two ways once it decides to grant a permit under CWA

§ 402(a)(1)(A) or (B). 33 U.S.C. § 1314 (b) (2012). The EPA can promulgate guidelines for an

entire class of industry when operating under § 402(a)(1)(A). Id. In the alternative, the EPA

may establish effluent limitations geared to the particular exigency of an individual permit

application under § 402(a) (1)(B). Northern Cheyenne Tribe v. Montana Dept. of Environmental

Quality, 234 P.3d 51, 55 (Mont. 2010). In determining ELG limits for categories and

subcategories of point sources, the CWA specifies several factors that must be considered by the

EPA in determining BAT limits for the ELGs:

Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate.

33 U.S.C. § 1314(b)(2)(B). These factors are not all equal however, and other jurisdictions have

given the EPA leeway to adjudicate the appropriate BAT for the ELG limits for categories and

subcategories. See Nat’l Res. Def. Council v. EPA, 863 F.2d 1420, 1426 (9th Cir.1988).

Assuming that the EPA determines the BAT limits for the ELGs, the ELGs have to be

incorporated into the NPDES permit to have teeth. See Tex. Oil & Gas Ass'n v. EPA, 161 F.3d

923, 928 (5th Cir. 1998); Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 350 (D.C. Cir. 1993) (the

“rubber hits the road” only when ELGs are incorporated into NPDES permits). The ELG of

MEGS category does not have to be incorporated into NPDES as each site can have a variance of

what the EPA must determine on a case-by-case basis what effluent limitations represent the

21

BAT level, using its “best professional judgment.” See 40 C.F.R. § 125.3(c)-(d). Therefore, the

MEGS NPDES permit conditions can take the place of uniform national guidelines, but the

technology-based standard remains the same. See Tex. Oil, 161 F.3d at 929.

B. EPA Region XII Properly Decided that the Zero Discharge Requirement for Bottom Ash and Fly Ash

The EPA is generally given latitude in determining the appropriate BAT on a case-by-

case basis. See id. at 930. The EPA determined that there should be zero discharge for toxic

discharges associated with bottom ash and fly ash. R. at 9. There were several factors that EPA

Region XII balanced in determining the zero discharge limitation. Id. The factors that EPA

Region XII weighed included evidence that the dry handling of bottom ash and fly ash has been

in use at existing plants in the same industry as MEGS for many years, that MEGS is sufficiently

profitable to adopt dry handling of theses wastes with zero liquid discharges2, and that there were

elevated levels of toxic pollutants: mercury, arsenic and selenium from the discharge of the

MEGS coal ash pond. Id

Based on the factors stated in 33 U.S.C. § 1314(b)(2)(B), EPA Region XII properly

weighed the cost of meeting BAT limitations versus the risk of toxic pollutants. See Rybachek v.

EPA, 904 F.2d 1276, 1291 (9th Cir. 1990). In Rybachek, an Alaskan mining association and

miners brought suit against the EPA for challenging the BAT analysis of placer mining, focusing

on treatment required of sluice-box discharge water. Id. at 1276. The EPA weighed the costs of

recirculating the process waste water and made a decision based on data to make the

recirculation the BAT in the placer mining industry. Id. at 1291. The court held that the EPA

considered the relevant factors and made a rational connection between the data and the

conclusion to make the recirculation the BAT in the placer mining industry. Id.

2 EPA Region XII findings included that there was no more than a twelve cents per month increase in the average consumer’s electric bill.

22

EPA Region XII weighed the data given before them, that MEGS would be sufficiently

profitable after adopting dry handling of bottom ash and fly ash versus the risk of any amount of

discharge from dry handling. R. at 9. Therefore, this Court should affirm the Environmental

Board’s decision to uphold the rational decision to act on Best Professional Judgment as

alternative ground for zero discharge for ash transport and treatment waste. See Rybachek, 904

F.2d at 1291.

IV. THE COAL ASH POND IS A WATER OF THE UNITED STATES, THEREFORE DISCHARGES INTO IT REQUIRE A NPDES PERMIT

Allowing pollutants to be discharged into the coal ash pond without a permit circumvents

the central goal of the CWA: preventing the discharge of pollutants into the waters of the U.S.

See 33 U.S.C. § 1251. The ash pond falls into the broad definition of waters of the U.S. because

it was created from an impoundment of Fossil Creek. See 40 C.F.R. § 122.2 (2017). While

waste treatment ponds are excluded from the definition of waters of the U.S., the text3 of the

regulation states that treatment ponds created from impoundments of waters of the U.S.—such as

the ash pond—remain waters of the U.S. Id. The EPA unlawfully suspended the portion of the

definition keeping treatment ponds created from impoundments waters of the U.S. in July 1980

because it failed to obey the procedural requirements of the APA nor possessed authority to do

so under the CWA. See 5 U.S.C. § 553 (2012); Consolidated Permit Regulations, 45 Fed. Reg.

48,620 (July 21, 1980) (codified at 40 C.F.R. pt. 122). Therefore, this Court should vacate the

suspension and enforce the definition as it was lawfully enacted. See 5 U.S.C. § 706(2)(A)

(2012).

A. The July 1980 Suspension is Subject to Judicial Review Because it is “Final Agency Action”

3 The text of the regulation states that the waste treatment exclusion “applies only to manmade bodies of waters which neither were originally created in waters of the United States…nor resulted from the impoundment of waters of the United States.” 40 C.F.R. § 122.2.

23

Section 704 of the APA states that “final agency action” is subject to judicial review. 5

U.S.C. § 704 (2012). To be “final” under the APA, the agency action must satisfy two

conditions; “first, the action must mark the consummation of the agency’s decisionmaking

process—it must not be of a merely tentative or interlocutory nature. And second, the action

must be one by which rights or obligations have been determined, or from which legal

consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S.Ct. 1807, 1813

(internal quotations omitted) (quoting Bennett v. Spear, 520 U.S. 154, 177–178 (1997)). Courts

look to the impact, not the availability of future administrative proceedings, when assessing these

conditions. Envtl. Def. Fund v. Ruckelshaus, 439 F.2d 584, 592 (D.C. Cir. 1971). Once an

agency articulates an unequivocal position and expects regulated entities to conform to the

position, the action is subject to judicial review. Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 437

(D.C. Cir. 1986).

Courts have held that stays by administrative agencies constitute final action that is

subject to judicial review. Clean Air Council v. Pruitt, 862 F.3d 1, 8–9 (D.C. Cir. 2017). In

Clean Air Council, the court found the imposition of a stay to the compliance date for a

regulation under the Clean Air Act was a final action. Id. Because the decision to implement the

stay represented the final agency position on the issue, had the status of law, and had an

immediate and direct effect on the parties it satisfied the first Bennett factor. Id. at 6. Likewise,

because changing the compliance date relieved parties of any obligation to meet the listed

deadline, the stay satisfied the second Bennett factor. Id. at 7. In light of the fact that EPA had

proposed to extend the stay for years, the court held the order warranted review. Id. at 7.

In the instant case, the July 1980 suspension constitutes final agency action. See Bennett,

520 U.S. at 177–78; Clean Air Council, 862 F.3d at 8–9. Despite the language in the initial

24

suspension that the EPA intended to promptly begin the rulemaking process, the suspension has

been in effect for over 35 years. R. at 12. The EPA has twice continued the stay since the initial

suspension, and it currently remains in effect indefinitely. Id. The failure to engage in the

promised rulemaking process, considered with its enduring effect, indicates that the suspension

marks the consummation of the EPA’s decision making process. See Bennett, 520 U.S. at 177–

78. Furthermore, the suspension of part of the definition of waters of the U. S. affects legal

obligations under the CWA. See Bennett, 520 U.S. at 177–78. The suspension changes what

types of waste treatment plants qualify for an exclusion from the CWA’s regulatory

requirements. See Consolidated Permit Regulations, 45 Fed. Reg. at 48,620. The suspension

therefore is ripe for judicial review under the APA. 5 U.S.C. § 704.

B. The Suspension was Unlawful Because it Did Not Follow the APA’s Procedural Requirements for Rulemaking

Administrative agencies have the authority to reconsider, alter, amend, and revoke

existing rules, but only when they follow the procedures outlined in the APA. 5 U.S.C. § 553;

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015). Here the EPA fail to obey these

requirements when implementing the suspension, therefore the Court should find it unlawful and

vacate it. 5 U.S.C. § 706(2)(A).

1. The EPA was Required to Engage in Notice and Comment Rulemaking Because the Suspension Amounted to an Amendment of an Existing Rule

The EPA’s suspension of the portion of the waste treatment exclusion falls into the broad

definitions of rules and rulemaking, and is not the type of interpretative rule exempt from the

APA’s procedural requirements. See 5 U.S.C. §§ 551, 553 (2012). The APA requires agencies

to publish notice of proposed rules and allow for public comment when the agency engages in

rule making. 5 U.S.C. § 553. For purposes of the APA, “rule” is broadly defined to be the

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“whole or a part of an agency statement of general or particular applicability and future effect

designed to implement, interpret, or prescribe law or policy or describing the organization,

procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4). “Rule making” is defined

to mean agency “process for formulating, amending, or repealing a rule.” Id. at § 553(5). When

an agency action meets these definitions, it must obey the notice and comment requirements

unless the action is an interpretative rule. 5 U.S.C. § 553.

The EPA’s July 1980 suspension is the sort of rule that is required to abide by the notice

and comment requirements of the APA because it represents a policy change that repudiates the

meaning of the original rule. See Nat’l Family Planning & Reprod. Health Ass’n v. Sullivan, 979

F.2d 227, 242 (D.C. Cir. 1992) (holding a Department of human and health services directive

that would allow abortion counselling where the existing regulation prohibited it was a

legislative rule requiring notice and comment.) Where agency action runs counter to the existing

rule or policy, courts will find such actions to be amendments requiring notice and comment, not

interpretive rules. Id. at 235; see also Marshall v. W. Union Tel. Co., 621 F.2d 1246, 1260 (3rd

Cir. 1980) (holding change of a standard was an amendment requiring notice and comment).

Interpretative rules, on the other hand, merely explain or clarify terms, confirm requirements, or

remind parties of existing statutory duties. Nat’l Family Planning & Reprod. Health Ass’n at

236–37.

Here the EPA’s suspension ran counter to the existing rule because it expressly removed

part of the definition of waters of the United States, a central concept to the CWA. See

Consolidated Permit Regulations, 45 Fed. Reg. at 48,620. Moreover, courts recognize that stays

and suspensions are “tantamount to amending or revoking a rule.” See Clean Air Council v.

Pruitt, 862 F.3d at 6. Where the EPA engaged in notice and comment rulemaking when it first

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promulgated the definition of waters of the United States, it should also have done so when it

removed part of the definition. See Consolidated Permit Regulations: CWA National Pollutant

Discharge Elimination System; CWA Section 404 Dredge or Fill Programs, 45 Fed. Reg. 33,290

(May 19, 1980) (codified at 40 C.F.R. pts. 122, 123, 124, 125). Allowing the EPA to implement

such a change without so doing undermines the APA’s procedural framework. See Perez, 135 S.

Ct. at 1206.

2. The Suspension was Not in Accordance with the APA, So it Should Be Vacated

When the EPA implemented the suspension in July, 1980, it did so without engaging in

notice and comment rule making. See Consolidated Permit Regulations, 45 Fed. Reg. at 48,620.

Because the action falls under the APA’s broad definitions of rule and rule making, the EPA was

obligated to follow these procedural requirements. See 5 U.S.C. § 551. Moreover, there is no

statutory basis in the CWA authorizing the EPA to implement stays and suspensions as some

other statutes provide a limited basis to do so. Compare 33 U.S.C. § 1361 (2012) (EPA’s

administrative authority under the CWA), with 42 U.S.C. § 7607(d)(7) (2012) (granting EPA

limited authority to make stays under the Clean Air Act). Since the EPA neither meet the APA’s

requirements nor possessed independent authority to do so under the CWA, the suspension

constituted unlawful agency action and accordingly cannot be afforded the “force and effect of

law.” See 5 U.S.C. § 706(2)(A); Chrysler Corp. v. Brown, 441 U.S. 281, 313 (1979). The court

likewise should not give deference to the EPA’s position because it is longstanding, but hold it to

be of the sort of entrenched executive error identified in Rapanos v. United States that is not

entitled to deference. 547 U.S. 715, 752 (2006); see also Summit Petroleum Corp. vs. EPA, 690

F. 3d 733, 746 (6th Cir. 2012) (vacating unreasonable EPA action despite longstanding use).

Therefore, the Court should vacate the July 1980 suspension and its subsequent iterations. See 5

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U.S.C. § 706 (providing authority to set aside unlawful agency action); Fertilizer Institute v.

EPA, 935 F.2d 1303, 1313 (D.C. Cir. 1991) (vacating agency action for failure to comply with

notice and comment requirements).

Upon vacating the suspension, the court should give effect to the definition of waste

treatment systems as originally construed. See United States v. Nixon, 418 U.S. 683, 696 (1974)

(holding regulations remain legally binding until lawfully amended or revoked). This original

definition excludes treatment ponds that resulted from impoundments of waters of the United

States. 40 C.F.R. § 122.2. The coal ash pond was created by damning the Fossil Creek, a

tributary to the Progress River, a navigable-in-fact interstate body of water which. R. at 7. Since

the Progress River is as a water of the United States. under the CWA, Fossil Creek likewise

qualifies as such because it is a tributary of the former. See 40 C.F.R. § 122.2. The coal ash

pond thus represents an impoundment of a water of the U.S. that does not qualify for the waste

treatment exception, so it qualifies as a water of the U.S. in its own right. See id. Therefore, this

court should hold that the discharges into the ash pond require the implementation of effluent

limits under CWA Sections 301(b) and 402. See 33 U.S.C. §§ 1311, 1342 (2012).

C Even if the July 1980 Suspension was Lawful, the Coal Ash Pond Nevertheless Qualifies as a Water of the U.S

Despite the suspension to the sentence excluding impoundments from qualifying under

the waste treatment exclusion, such impoundments nevertheless constitute waters of the U.S.

based on the definition and EPA interpretations of it subsequent to the suspension. See 40 C.F.R.

§ 122.2. Expressly included in the definition of waters of the U.S. are “all impoundments of

waters otherwise identified as waters of the United States.” Id. This definition can certainly

encompass impoundments used for treatment ponds, despite the language of the waste treatment

exception. See id. The preamble to the original waste treatment exception, stating “because the

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CWA was not intended to license dischargers to freely use waters of the United States as waste

treatment systems, the definition makes clear that treatment systems created in those waters or

from their impoundment remain waters of the United States” further reinforces the notion that

even impoundments used for waste treatment fall under CWA regulation. See Consolidated

Permit Regulations: CWA National Pollutant Discharge Elimination System; CWA Section 404

Dredge or Fill Programs, 45 Fed. Reg. 33,290, 33,298 (May 19, 1980) (codified at 40 C.F.R. pts.

122, 123, 124, 125).

Moreover, the EPA itself has taken the position subsequent to the July 1980 suspension

that waste treatment ponds created from impoundments are still waters of the U.S. See Office of

Solid Waste and Emergency Response, U.S. EPA, Closure of a Doe Surface Impoundment Unit

That Has Lost Interim Status (April 2, 1986). In a guidance letter, the EPA, citing the preamble

language, explained that the suspension did not change the fact that impoundments could still

constitute waters of the U.S. Id. Indeed, the use of the words “makes clear” in the definition

indicated that definition was simply pronouncing an interpretation that already existed under the

regulations. Id.

In litigation arising over the effect of the suspension, the EPA has adopted the same

position. See W. Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1290 (S.D. Va. 1989), aff’d, 932

F.2d 964 (4th Cir. 1991). In W. Va. Coal Ass’n, coal mining companies sued the EPA for

enacting a policy that would prohibit in-stream waste treatment ponds citing the July 1980

suspension as proof that impoundments were not waters of the U.S. 728 F. Supp. at 1289. The

EPA’s position was that the suspension “had no effect upon the clear definitional mandate that

impoundments of waters of the United States remain waters of the United States.” Id. at 1290

(internal quotations omitted). The court upheld the EPA’s position on the suspension. Id. In

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later years, however, the EPA reversed its position and argued that the effect of the suspension

was to include treatment ponds in the waste treatment exclusion. E.g. Ohio Valley Envtl. Coal. v.

Aracoma Coal Co., 556 F.3d 177, 214 (4th Cir. 2009) (discussing the EPA’s shifting position on

the issue).

In light of the rest of the definition of waters of the U.S., the preamble to the original

definition, and the EPA’s initial position following the suspension, the Court should hold that the

coal ash pond qualifies as a water of the United States if the suspension is given legal effect. See

W. Va. Coal Ass’n v. Reilly, 728 F. Supp. at 1290. At the very least, the EPA’s vacillating

position on the issue absent a reasoned analysis means the Court should not afford deference

their positon in the instant case. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993)

(explaining shifting agency positions are entitled to less deference); Motor Vehicle, Mfrs. Ass’n.

of U.S., Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29, 57 (1983) (stating agencies must supply a

reasoned analysis when changing course).

V. THE ASH POND CLOSURE AND CAPPING PLAN REQUIRES A PERMIT FOR THE DISCHARGE OF FILL MATERIAL PURSUANT TO SECTION 404 OF THE CWA AS THE FUNDAMENTAL NATURE OF THE ASH POND IS CHANGED This Court should reverse the Environmental Appeals Board’s decision that no section

404 permit is required for the ash pond closure and capping activities in order to protect the

general purpose of the Clean Water Act, to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters. 33 U.S.C. § 1251(a). The purpose of Section 404 of

the CWA is to make unlawful the discharge of dredged or fill material into “navigable waters” of

the United States without a permit. See Rapanos, 547 U.S. at 723. The fill material consists of

coal ash solids. R. at 7. The MEGS ash pond was once a flowing stream and bed of Fossil

Creek. Id. at 7, 13. The ash pond was created in June, 1978 by damming the then free-flowing

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upper reach of Fossil Creek. Id. at 7. The ash pond through the ash pond treatment system

indirectly discharges to Moutard Reservoir (Outfall 002). Id. at 8. Fossil Creek does not

discharge to the Moutard Reservoir, but is a perennial tributary to the Progress River. Id.

Because the MEGS ash pond is considered a “navigable water” of the United States, and the coal

ash solids would be considered a pollutant, the ash pond requires a 404 permit.

A. The MEGS Ash Pond Should be Considered a “Navigable Water” Under the “Significant Nexus” Test Forth in Rapanos

Justice Kennedy’s concurrence in Rapanos states that the critical factor in determining

the CWA’s coverage is whether the water in question has a “significant nexus” to waters that are

or were navigable in fact or that could reasonably be so made. See 547 U.S. at 759 (Kennedy, J.,

concurring in the judgment) (citing Solid Waste Agency of Northern Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 159, 167 (2001) (“SWANCC”).

On its face, the MEGS ash pond would not be considered “navigable waters” in the

traditional sense of the term. See id. at 731. However, as a part of Fossil Creek, the MEGS ash

pond should be considered a tributary to the Progress River, and therefore satisfies the significant

nexus test outlined by Justice Kennedy. See id. In order to determine significant nexus, the ash

pond, either alone or in combination with similarly situated lands in the region, significantly

affects the chemical, physical, and biological integrity of other covered waters by the CWA more

readily understood as navigable. See id. at 759

There is a covered body of water that is adjacent to the MEGS ash pond that would run

the risk of being significantly affected by the MEGS ash pond. R. at 7. The MEGS ash pond is

located adjacent to the Moutard Reservoir. Id. In the Rapanos concurring opinion, Justice

Kennedy distinguishes the ponds in SWANCC, that they did not share the adjacency needed like

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the wetlands that required fill permits in Rapanos. See 547 U.S. at 777. The concurring opinion

recognizes that:

new or loose fill, not anchored by grass or roots from other vegetation, could travel downstream through waterways adjacent to a wetland; at the least this is a factual possibility that the Corps' experts can better assess than can the plurality. Silt, whether from natural or human sources, is a major factor in aquatic environments, and it may clog waterways, alter ecosystems, and limit the useful life of dams.

Id. at 774. In Rapanos, the wetlands that were the basis for the case were filled with sand

without a permit and were near ditches or man-made drains that eventually emptied into

traditional navigable waters. Id. at 715. The Progress River, which satisfies the traditional

definition of navigable waters under the CWA, is in close proximity to the MEGS coal ash pond.

R. at 7. With the risk of coal ash solids contaminating the Progress River, there is a significant

nexus to consider the MEGS ash pond a “navigable water” under the “significant nexus” test.

See Rapanos, 547 U.S. at 777; see also United States v. Zanger, 767 F. Supp. 1030, 1034 (N.D.

Cal. 1991) (holding that an intermittent stream, Pachecho Creek, falls under the scope of the

Clean Water Act and that a fill permit was necessary to discharge dredged or fill material into the

stream).

B. Once the Coal Ash Pond Ceases to be Used as a Waste Treatment Pond it No Longer Qualifies for the Exclusion to Waters of the U.S.

But for the waste treatment exception, the coal ash pond would be regulated as a water of

the United States because it was created from an impoundment of a water of such waters—Fossil

Creek. See 40 C.F.R § 122.2. In other words, based on its hydrological characteristics, the ash

pond is a water of the United States, but it is not considered as such because it falls under the

waste treatment exemption. See id. The proposed cap and fill plan for the Ash Pond would end

its use as a waste treatment pond thereby removing the rationale for its exemption from the

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definition of waters of the United States. R. at 7. Because the Ash Pond would no longer qualify

for the exemption, it should be treated as if it did not meet the exemption in the first place—

falling under the definition of waters of the United States. See 40 C.F.R § 122.2. Taking such an

approach is consistent with the preamble to the EPA’s implementation of the definition. See

Consolidated Permit Regulations: CWA National Pollutant Discharge Elimination System; CWA

Section 404 Dredge or Fill Programs, 45 Fed. Reg. at 33,298. There the EPA stated that the

“CWA was not intended to license dischargers to freely use waters of the United States as waste

treatment systems.” Id. The EPA recognized the distinction between manmade treatment ponds

built to meet CWA requirements and ponds created from impoundments. Id. The closure of a

manmade pond would not implicate Section 404 because it never was a water of the U.S. See id.

In light of the overall purpose of the CWA and the preamble language, the closure of a waste

treatment pond created from an impoundment should revert to being considered a water of the

United States. See 40 C.F.R. § 122.2.

C. The Cap and Fill Plan Requires a 404 Permit

Whenever “fill” material is placed in waters of the U.S., it requires a permit under

Section 404. 33 U.S.C § 1344 (2012). Fill is defined as “material placed in waters of the United

States where the material has the effect of: (i) replacing any portion of a water of the United

States with dry and; or (ii) changing the bottom elevation of any portion of a water of the United

States.” 33 C.F.R. § 323.2 (2017). The proposed cap and fill plan for the coal ash pond will

satisfy both of those definitional elements. See id.; R. at 7. By filling the pond with coal ash

solids, the bottom elevation will change and it will become dry land. See id. Therefore, the

proposed plan will require a Section 404 permit. See 33 U.S.C § 1344.

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CONCLUSION

For the foregoing reasons, FCW respectfully asks the Court to reverse the EAB’s order

denying review and to vacate the EPA’s July 1980 Suspension and its subsequent iterations and

the April 2017 delay notice. FCW further asks the Court to hold that: (1) the state of Progress’

certification conditions must be included in EnerProg’s NPDES permit; (2) the April 2017 delay

notice must be vacated because of EPA’s failure to state an adequate basis for its action or

provide public notice; (3) EPA Region XII can properly rely on BPJ as an alternative ground to

require zero discharge of coal ash transport wastes regardless of the 2015 ELG guidelines; (4)

the coal ash pond is a water of the United States and therefore discharges into the coal ash pond

requires a NPDES permit; and (5) the ash pond closure and capping plan requires a permit for

the discharge of fill material pursuant to section 404 of the CWA.

Dated: Nov. 26, 2017 Respectfully submitted,

Counsel for Petitioner

Team 28