Team No. 27 C.A. No. 17-000123 and 17 ... - Pace Law School 27... · The Conditions are...
Transcript of Team No. 27 C.A. No. 17-000123 and 17 ... - Pace Law School 27... · The Conditions are...
Team No. 27
C.A. No. 17-000123 and 17-000124
UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
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
NPDES Appeal No. 17-0123
Brief of Petitioner, Fossil Creek Watchers, Inc.
i
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. i
TABLE OF AUTHORITIES ....................................................................................................... ii
STATEMENT OF JURISDICTION ........................................................................................... 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................................... 1
STATEMENT OF THE CASE .................................................................................................... 2
I. Statement of Facts ................................................................................................................ 2
II. Procedural History ............................................................................................................... 5
STANDARD OF REVIEW .......................................................................................................... 6
SUMMARY OF THE ARGUMENT .......................................................................................... 6
ARGUMENT ................................................................................................................................. 7
I. EPA HAS NO JURISDICTION TO DETERMINE THE APPROPRIATENESS OF THE
CONDITIONS OF STATE CWA SECTION 401 CERTIFICATIONS, AND WHILE THE
CONDITIONS AT ISSUE HERE ARE “APPROPRIATE REQUIREMENTS OF STATE
LAW,” THEY INDEPENDENTLY VIOLATE THE REQUIREMENT FOR A CWA SECTION
404 PERMIT. .................................................................................................................................. 7
A. EPA Was Required to Include the State of Progress’s Certification Conditions
Without Regard to the Conditions’ Consistency with CWA Section 401(d). ....................... 11
B. The Conditions are “Appropriate Requirements of State Law” ................................. 13
C. EPA’s Conditions Requiring Ash Pond Closure and Capping Are a Violation of § 404
Permit Requirements. ............................................................................................................ 15
II. THE APRIL 25, 2017 EPA NOTICE IS NOT EFFECTIVE TO REQUIRE
SUSPENSION OF PERMIT COMPLIANCE DEADLINES BECAUSE EPA OVERSTEPPED
ITS STATUTORY AUTHORITY BY ISSUING THE NOTICE AND BECAUSE EPA FAILED
TO UNDERGO NOTICE AND COMMENT RULEMAKING. ................................................. 17
A. APA § 705 Does Not Authorize EPA to Postpone the Compliance Date of a Duly
Promulgated Rule that has Already Become Effective. ........................................................ 17
B. EPA May Not Repeal a Duly Promulgated Rule Without Undergoing Notice and
Comment Rulemaking. .......................................................................................................... 19
ii
III. EPA REGION XII PROPERLY RELIED ON BEST PROFESSSIONAL JUDGMENT
TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES,
INDEPENDENT OF THE APPLICABILITY OF THE 2015 ELG. ........................................... 25
IV. NPDES PERMITTING REQUIREMENTS APPLY TO ENERPROG’S OUTFLOW-8,
WHICH DISCHARGES POLLUTANTS INTO THE MEGS ASH POND. ............................... 26
V. THE ASH POND CLOSURE AND CAPPPING PLAN REQUIRES A PERMIT FOR
THE DISCHARGE OF FILL MATERIAL PURSUANT TO SECTION 404 OF THE CWA. .. 31
A. The Lack of a Recapture Provision Will Not Prevent the Coal Ash Pond from
Becoming Subject to Section 404 of the CWA. .................................................................... 31
B. The Abandoned Coal Ash and the Cap Material Deposited on the Coal Ash Pond
Will Subject the Closure and Capping Plant to CWA Section 404 Permit Requirements. ... 32
TABLE OF AUTHORITIES
Cases
Alcaraz v. Block, 746 F.2d 593 (9th Cir. 1984) ............................................................................ 21
Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C.Cir. 1993) ....... 20
Am. Paper Institute, Inc. v. EPA, 996 F.2d 346 (D.C. Cir.1993).................................................... 8
American Rivers, Inc. v. F.E.R.C., 129 F.3d 99 (2d Cir. 1997) .................................................... 12
Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210 (D.D.C. 2011) ................................ 8
Auer v. Robbins, 519 U.S. 452 (1997) .................................................................................... 15, 16
Bates v. United States, 522 U.S. 23 (1997) ................................................................................... 18
Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980) ................................................................. 21
Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL (N.D. Cal. Aug. 30, 2017) 18,
19, 23
Chamber of Commerce v. OSHA, 636 F.2d 464 (D.C.Cir. 1980) ................................................. 21
Chemical Mfrs. Ass'n v. EPA, 870 F.2d 177 (5th Cir. 1989) ........................................................ 23
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837(1984) ......................... 6, 15
Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) ...................... 15, 16
Defenders of Wildlife v. EPA, 415 F.3d 1121 (10th Cir. 2005) ...................................................... 8
Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) .......................... 24
iii
EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200 (1976) ..................... 9
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).......................................................... 22
Fertilizer Inst. v. U.S. E.P.A., 935 F.2d 1303
(D.C. Cir. 1991)............................................................................................................ 22, 24, 27
Fertilizer Inst. v. U.S. E.P.A., 935 F.2d 1303, 1312 (D.C. Cir. 1991). ......................................... 31
General Motors Corp. v. Ruckelshaus, 742 F.2d 1561 (D.C.Cir.1984) ........................... 20, 21, 23
Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408 (7th Cir. 1987)..................................... 22, 30
Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408 (7th Cir. 1987)........................................... 27
Marshall v. Western Union Tel. Co., 621 F.2d 1246 (3d Cir. 1980) ...................................... 20, 26
Nat. Res. Def. Council v. E.P.A., 643 F.3d 311 (D.C. Cir. 2011) ........................................... 22, 23
Nat. Res. Def. Council, Inc. v. U.S. E.P.A., 863 F.2d 1420 (9th Cir. 1988) ................................. 25
Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992)
............................................................................................................................................. 21, 27
Pickus v. United States Bd. of Parole, 507 F.2d 1107 (D.C.Cir. 1974) .................................. 21, 27
Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820 (9th Cir. 2012) ........................................ 18
PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700 (1994) ..................... passim
S. California Aerial Advertisers’ Ass'n v. F.A.A., 881 F.2d 672 (9th Cir. 1989) .......................... 20
S.D. Warren Co. v. Maine Bd. of Environmental Protection, 126 S. Ct. 1843 (U.S. 2006) ......... 11
Sierra Club v. Meiburg, 296 F.3d 1021 (11th Cir. 2002) ............................................................... 8
Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28 (3d. Cir. 1995) ........................ 17, 19
Sprint Corp. v. F.C.C., 315 F.3d 369 (D.C. Cir. 2003) .............................................. 20, 22, 26, 27
Sprint Corp. v. F.C.C., 315 F.3d 369 (D.C. Cir. 2003). ............................................................... 30
United States v. Cumberland Farms of Connecticut, Inc., 647 F.Supp 1166 (D. Mass., 1986) ... 31
United States v. Mead Corp., 533 U.S. 218 (2001) ................................................................ 15, 18
United Techs. Corp. v. E.P.A., 821 F.2d 714 (D.C. Cir. 1987) ............................................. passim
Western Oil & Gas Assoc. v. EPA, 633 F.2d 803 (9th Cir. 1980) ................................................ 22
Statutes
33 U.S.C. § 1251(a) (2012) ............................................................................................... 10, 13, 16
33 U.S.C. § 1251(a)(2) (2012) ...................................................................................................... 13
33 U.S.C. § 1251(b) (2012) .......................................................................................................... 10
33 U.S.C. § 1311 (2012) ............................................................................................................... 11
iv
33 U.S.C. § 1311(b)(1) (2012) ...................................................................................................... 11
33 U.S.C. § 1311(b)(1)(C) (2012) .......................................................................................... 12, 13
33 U.S.C. § 1313(c)(2)(A) (2012) .......................................................................................... 12, 13
33 U.S.C. § 1313(d)(4)(B) (2012) ................................................................................................ 13
33 U.S.C. § 1314 (2012) ............................................................................................................... 11
33 U.S.C. § 1341 (2012) ..................................................................................................... 4, 11, 13
33 U.S.C. § 1341(a) (2012) ........................................................................................................... 14
33 U.S.C. § 1341(d) (2012) .................................................................................................... 14, 16
33 U.S.C. § 1342 (2012) ............................................................................................................... 19
33 U.S.C. § 1342(a) (2012) ........................................................................................................... 28
33 U.S.C. § 1344 (2012) ................................................................................................................. 4
33 U.S.C. § 1362 (2012) ............................................................................................................... 18
33 U.S.C. § 1362(14) (2012) ........................................................................................................ 11
33 U.S.C. § 1362(6) (2000) .......................................................................................................... 14
33 U.S.C. § 1362(7) (2000) .......................................................................................................... 15
33 U.S.C. § 1369(b)(2012) ............................................................................................................. 4
33 U.S.C. § 1370 (2012) ............................................................................................................... 13
5 U.S.C. § 551(4) (2012) ........................................................................................................ 22, 26
5 U.S.C. § 551(5) (2012) .............................................................................................................. 22
5 U.S.C. § 553 (2012) ................................................................................................................... 20
5 U.S.C. § 553(b) (2012) ........................................................................................................ 23, 29
5 U.S.C. § 553(b)(3)(A) (2012) .................................................................................................... 23
5 U.S.C. § 553(c) (2012) ......................................................................................................... 23, 30
5 U.S.C. § 704 (2012) ..................................................................................................................... 4
5 U.S.C. § 705 (2012) ............................................................................................................... 4, 20
5 U.S.C. § 706 (2012) ..................................................................................................................... 9
5 U.S.C. § 706(2)(c) ...................................................................................................................... 20
5 U.S.C. § 706(2)(C) ............................................................................................................... 20, 28
5 U.S.C. § 706(2)(C) (2012) ......................................................................................................... 20
5 U.S.C. §§ 701-706 (2012) ............................................................................................................ 9
5 U.S.C. §706(2)(c) (2012) ........................................................................................................... 20
v
Regulations and Administrative Materials
33 C.F.R. § 323.2 (2006) .............................................................................................................. 16
33 C.F.R. § 323.2(c) (2006) .......................................................................................................... 15
33 C.F.R. § 323.3 (2008) .............................................................................................................. 20
33 C.F.R. § 323.3 (2014) ........................................................................................................ 19, 20
33 C.F.R. § 323.3(e)(1) (2008) ..................................................................................................... 20
33 C.F.R. § 323.3(e)(2) (2008) ..................................................................................................... 20
40 C.F.R. § 122.2 (1983) .............................................................................................................. 32
40 C.F.R. § 124.19 (2017) .............................................................................................................. 5
40 C.F.R. § 130.2(d) (2017) .......................................................................................................... 13
40 C.F.R. § 131.12 (1993) ............................................................................................................ 14
40 C.F.R. § 131.4(a) (1993) .......................................................................................................... 14
40 C.F.R. § 131.6(a)-(f) (1983)..................................................................................................... 13
45 Fed. Reg. 48620 ....................................................................................................................... 32
80 Fed. Reg. 67,838 (Nov. 3, 2015).............................................................................................. 28
82 Fed. Reg. 19005, 19005 (April, 25, 2017) ................................................................... 21, 23, 28
1
STATEMENT OF JURISDICTION
This case concerns the application of section 401 and section 404 of the Clean Water Act
(“CWA”), 33 U.S.C. §§ 1341, 1344 (2012), and section 705 of the Administrative Procedures Act
(“APA”), 5 U.S.C. § 705 (2012). Petitioners timely filed petitions for review with the
Environmental Appeals Board (“EAB”) pursuant to 40 C.F.R. § 124.19 (2017). This Court has
jurisdiction over this appeal from the final decision of the EAB. 33 U.S.C. § 1369(b); 5 U.S.C. §
704; see also R. at 2.1
STATEMENT OF ISSUES PRESENTED FOR REVIEW
I. Whether the Final Permit properly included conditions requiring closure and
remediation off 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 certain future compliance
deadlines for the 2015 Final Effluent Limitation Guidelines for the Steam Electric
Power Generating Industry is effective to require the suspension of the permit
compliance deadlines for achieving zero discharge of coal ash transport water.
III. Whether EPA Region XII could 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.
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 provision
of 40 C.F.R. section 122.2 that originally included waste treatment systems formed by
impounding pre-existing waters of the United States within the regulatory definition of
waters of the United States.
V. Whether the ash pond closure and capping plan requires a permit for the discharge of
fill material pursuant to section 404 of the CWA.
1 This and all subsequent citations using the format “R. at #” are references to the 2018 Final
Problem, Revised on November 20, 2017.
2
STATEMENT OF THE CASE
I. Statement of Facts
Operations and Discharges of the Moutard Electric Generating Station - Fossil Creek is
a “perennial tributary to the Progress River, a navigable-in-fact interstate body of water.” R. at 7.
In June, 1978, the “then free-flowing upper reach of Fossil Creek” was dammed to create an ash
pond. R. at 7. It is unclear from the record whether Fossil Creek still flows into the ash pond. R.
at 7. The ash pond is owned by EnerProg, L.L.C. (“EnerProg”) and has now been used for thirty
nine years in service of EnerProg’s “coal-fired electric generating plant,” Moutard Electric
Generating Station (“MEGS”), which is located in Fossil, Progress. R. at 6-7. It is unclear whether
the bottom of the ash pond is covered with a protective liner.
MEGS extracts up to 125 million gallons per day (MGD) from the Moutard Reservoir
(“Reservoir”), which is used to operate its closed-cycle cooling system (“cooling tower”). R. at 7.
EnerProg drains the MEGS cooling tower and its circulating water system directly to the Reservoir.
R. at 7.
MEGS generates numerous chemicals, which are discharged from the plant in a variety of
ways. R. at 7-8. As the plant loses water from evaporation, many minerals are left behind.
EnerProg uses ash sluice water from the coal furnace to transport these minerals, known as cooling
tower blowdown, to the ash pond via Outfall 008 (“OF-8”). R. at 8.
MEGS has a Flue Gas Desulfurization (FGD) system, which mixes flue gas with limestone
slurry to collect sulfur oxides (SOx). R. at 9. Through the FGD system, EnerProg discharges
254,000 gallons of water with high concentrations of metals and chloride per day. R. at 9. The
waste water from the FGD system is used by EnerProg to moisturize fly ash before sending the
mixture to the ash pond through Outfall 009 (“OF-9”). R. at 8-9.
3
Once all of the waste is in the ash pond, it “undergoes treatment by sedimentation before
it is discharged” to the Reservoir by Outfall 002 (“OF-2”). R. at 7. The discharge from OF-2
contains “elevated levels of mercury, arsenic, and selenium, which are all toxic pollutants.” R. at
9. It is unclear whether or not the ash pond is lined. EnerProg cleans the cooling tower and the
pipes of the circulating water system by draining them directly to the Reservoir via Outfall 001
(“OF-1”). R. at 7. It is unclear whether there are any other Outfalls, specifically those numbered
between Outfall 003-007.
EnerProg’s NPDES Permit - Either for one of the Outfalls listed above or for an unnamed
Outfall, the State of Progress issued a CWA section 401 certification in response to EnerProg’s
application to the EPA for a renewal of its National Pollutant Discharge Elimination System
(NPDES) permit. R. at 8. On January 18, 2017, Environmental Protection Agency (“EPA”)
Region XII issued the NPDES permit to EnerProg authorizing EnerProg “to continue pollution
discharges associated with the continued operation” of MEGS. R. at 6. The permit also included
requirements listed by Progress in its section 401 certification. Id.
The section 401 certification mandates that EnerProg “must cease the 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.” R. at 8. These
requirements were based on provisions of the state-enacted Coal Ash Cleanup Act (“CACA”). R.
at 8. CACA recites that its purpose is “to prevent public hazards associated with the failures of
ash treatment pond containment systems, as well as leaks from these treatment ponds into ground
and surface waters.” R. at 8-9.
In promulgating the NPDES permit, EPA recognized that MEGS is subject to the EPA
effluent limitation guidelines (ELG) for 2015 Steam Electric Power Generating Point Source
4
Category under 40 C.F.R. § 423. R. at 7. Based on available technologies for dry ash handling,
the Best Available Technology (BAT) standard under the 2015 ELG requires MEGS to discharge
zero toxic pollutants associated with fly and bottom ash. R. at 9. However, on April 12, 2017,
EPA Administrator Scott Pruitt issued a Notice purporting to suspend the compliance date for the
2015 ELG. R. at 7. There is also a challenge to the 2015 ELG pending before the Fifth Circuit.
R. at 9.
EPA determined that the MEGS permit “must contain limits for toxic pollutants actually
present in the discharge based on the BAT,” independent of the 2015 ELG. R. at 9. The decision
was based on the determination that dry ash handling had been in use at “existing plants for many
years” and MEGS was sufficiently profitable to adopt dry ash handling. R. at 9. Accordingly, the
permit writer exercised his best professional judgment (BPJ) that “zero discharge of ash handling
wastes by November 1, 2018 constitutes BAT for discharges associated with coal ash wastes.” R.
at 9.
To comply with the permit’s mandate that MEGS discharge zero toxic pollutants associated
with coal ash, the permit requires EnerProg to construct a new lined Retention Basin. R. at 8-9.
EnerProg will “reroute all waste streams that are currently discharged to the ash pond” to instead
flow into the Retention Basin, which includes at least OF-8 and OF-9. R. at 9. EnerProg is
supposed to be equipping the Retention Basin with a “cell where various vacuumed sediments and
solids can be decanted prior to disposal.” R. at 10.
Regardless of the NPDES permit’s requirement that MEGS have a zero discharge of “ash
handling wastes,” EnerProg will send “monofill leachate . . . contain[ing] coal ash” to the Retention
Basin. R. at 9-10. This coal ash, along with all other waste water, will be funneled from the
Retention Basin to OF-2 by Outfall 002A (“OF-2A”). R. at 8. OF-2 will then take the waste to
5
the Reservoir. R. at 8. OF-2A does not discharge “yard sump overflows,” which were discharged
via OF-2. R. at 8. OF-2A does discharge chemical metal cleaning waste, which was not
discharged via OF-2. R. at 8. It is unclear whether OF-2 will remain connected to the ash pond.
For the purpose of “evaporate[ing] the majority of the waste water produced from the FGD
[ ] system,” EnerProg installed a vapor compression evaporator (VCE) in 2015. R. at 9. The VCE
system eliminates the FGD waste water stream from OF-2 except for “severe” rain events, but it
is unclear what constitutes a “severe” rain event. R. at 9. EnerProg is constructing an FGD settling
basin, and “the waste from the basin will be treated by VCE.” R. at 10. “In case of severe storms,”
the basin’s overflow “may be routed to [OF-2].” R. at 10. It is uncertain whether the VCE system
prevents FGD waste from being discharged to the Retention Basin via OF-9.
The MEGS final permit required that at the MEGS facility, “there shall be no discharge of
pollutants in fly ash transport water” and that “there shall be no discharge of pollutants in bottom
ash transport water” by November 1, 2018. R. at 10. The permit said that the requirement only
applied to fly ash and bottom ash transport generated after November 1, 2018. R. at 10.
Additionally, the permit authorized EnerProg to continue using OF-08 at MEGS 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. R. at 10.
II. Procedural History
On April 1, 2017, both EnerProg and Fossil Creek Watchers, Inc. (“FCW”) filed a petition
in response to the NPDES permit with the Environmental Appeals Board (“EAB”), requesting that
the permit be remanded to Region XII for further consideration. R. at 6. Following a hearing
6
before the Honorable Judge Wink, the Honorable Judge Blinc, and the Honorable Judge Knod, the
EAB denied both petitions for review. R. at 6.
STANDARD OF REVIEW
Judicial review of EPA’s issuance of an NPDES permit is governed by provisions of the
Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706 (2012). A reviewing court “shall
hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706.
An agency’s interpretation of an ambiguous statute receives deference if Congress
implicitly or expressly delegated authority to enforce and interpret the statute. Chevron U.S.A. v.
Natural Resources Defense Council, 467 U.S. 837, 842–45, (1984).
SUMMARY OF THE ARGUMENT
First, EPA has no jurisdiction to determine the appropriateness of the conditions of state
CWA section 401 certifications because states are independently tasked with protecting certifying
the quality of their water resources and safeguarding the health and wellbeing of their citizens.
Additionally, although the Progress section 401 conditions are appropriate, they independently
violate CWA section 404 because EPA adopted self-contradictory regulations regarding
impermeable cap and fill material.
Second, EPA’s April 25, 2017 Notice is ineffective to postpone suspension of permit
compliance deadlines because (1) the APA only allows postponement of rules that have not yet
become effective and (2) because EPA neglected to engage in notice and comment rulemaking
before issuing the notice.
7
Third, EPA appropriately relied on Best Professional Judgment to require zero discharge
of coal ash transport wastes because the runoff from the MEGS coal plant is comprised of various
toxic pollutants, including mercury and selenium that were not regulated under the 1982 ELGs.
Fourth, NPDES permitting requirements apply to EnerProg’s Outflow-8, which discharges
pollutants into the MEGS ash pond. In 1980, EPA unilaterally stayed a provision in its CWA
regulations, exempting all waste treatment sites from CWA permit requirements. However, this
massive change in policy was undertaken without any notice and comment. As result, the policy
change was conducted in violation of the APA.
Finally, the coal ash closure and capping process will require a permit for the discharge of
fill material pursuant to section 404 of the CWA. Although the ash pond is currently exempted
from such requirements, its exempted status will expire once it is no longer used as a waste
treatment
ARGUMENT
I. EPA HAS NO JURISDICTION TO DETERMINE THE APPROPRIATENESS OF
THE CONDITIONS OF STATE CWA SECTION 401 CERTIFICATIONS, AND
WHILE THE CONDITIONS AT ISSUE HERE ARE “APPROPRIATE
REQUIREMENTS OF STATE LAW,” THEY INDEPENDENTLY VIOLATE THE
REQUIREMENT FOR A CWA SECTION 404 PERMIT.
The Clean Water Act “is a comprehensive water quality statute designed to ‘restore and
maintain the chemical, physical, and biological integrity of the Nation's waters.’” PUD No. 1 of
Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704 (1994) (quoting 33 U.S.C. § 1251(a)).
The CWA works with a two-step approach which delegates certain responsibilities to both federal
and state governments. 33 U.S.C. § 1251(b).
8
The first step requires the EPA to establish technology based limitations on individual
discharges by point sources into the United States navigable waters. 33 U.S.C. §§ 1311, 1314. A
point source is “any discernable, confined and discrete conveyance ... from which pollutants are
or may be discharged,” 33 U.S.C. § 1362(14), like an industrial pipe. Am. Paper Institute, Inc. v.
EPA, 996 F.2d 346, 348–49 (D.C.Cir.1993). The EPA is directed in § 301 of the CWA to set
effluent limitations capping the maximum allowable amount of discharge at each distinct point
source. 33 U.S.C. § 1311(b)(1). Once the effluent limitations are developed, they are included in
the National Pollutant Discharge System (“NPDES”). Id. The NPDES issues permits to individual
entities in charge of point sources which set the maximum amount of discharges of particular
contaminants which can be emitted from these sources. See generally id.; see also Sierra Club v.
Meiburg, 296 F.3d 1021, 1024 (11th Cir. 2002) (“The statute gives EPA the authority to issue
permits for point sources, and those permits are to establish technology-based effluent limitations
that incorporate increasingly stringent levels of pollution control technology over time.”).
The second step of the CWA addresses pollution stemming from non-point sources.
“[N]on-point source pollution is the entry of contaminants into the water body by any means other
than a discrete point source.” Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 214
(D.D.C. 2011). “Unlike point source pollution, EPA lacks the authority to control non-point source
discharges through a permitting process.” Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124
(10th Cir.2005). Therefore, the CWA requires each State to implement water quality standards
(also known as health-based standards) for the interstate water bodies within the State’s borders.
33 U.S.C. § 1341. EPA regulations mandate these standards contain: (1) designated uses for the
water body, (2) information concerning the methodology for choosing these uses, (3) water quality
criteria sufficient to protect the designated uses, (4) an antidegradation policy to prevent clean
9
waters from slipping below applicable standards, (5) a certification that the water quality standards
were properly adopted in a manner consistent with state law and (6) general information useful in
aiding the Agency's review. 40 C.F.R. § 131.6(a)-(f) (1983). The most important parts of the
standards are the “designated uses of the navigable waters involved and the water quality criteria
for such water.” 33 U.S.C. § 1313(c)(2)(A); see also 40 C.F.R. § 130.2(d) (2017) (defining water
quality standard as “a designated use or uses for the waters ... and water quality criteria for such
waters”).
When approaching the issue of whether a state requirement is a permissible condition of a
401 certification under the Clean Water Act, courts must determine whether the limitation at issue
falls within the scope of the state’s authority. PUD No. 1 of Jefferson Cty. v. Washington Dep't of
Ecology, 511 U.S. 700, 710 (1994).
“Section 303 of the Act . . . requires each State, subject to federal approval, to institute
comprehensive water quality standards establishing water quality goals for all intrastate waters.”
Id. (citing 33 U.S.C. §§ 1311(b)(1)(C))) “These state water quality standards provide ‘a
supplementary basis ... so that numerous point sources, despite individual compliance with effluent
limitations, may be further regulated to prevent water quality from falling below acceptable
levels.’” PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 704 (quoting
EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205, n. 12, 96 S.Ct.
2022, 2025, n. 12, 48 L.Ed.2d 578 (1976)).
A state water quality standard “shall consist of the designated uses of the navigable waters
involved and the water quality criteria for such waters based upon such uses” and “shall be such
as to protect the public health or welfare, enhance the quality of water and serve the purposes of
this chapter.” 33 U.S.C. § 1313(c)(2)(A). The chapter’s overall purposes are to “restore and
10
maintain the chemical, physical, and biological integrity of the Nation's waters,” 33 U.S.C. §
1251(a), and to achieve “water quality which provides for the protection and propagation of fish,
shellfish, and wildlife.” 33 U.S.C. § 1251(a)(2).
When establishing state water quality standards, the state shall take into consideration the
water’s “use and value for public water supplies, propagation of fish and wildlife, recreational [and
other purposes.]” 33 U.S.C. § 1313(c)(2)(A). Section 303 additionally contains an antidegradation
policy which requires state standards to “be sufficient to maintain existing beneficial uses of
navigable waters, preventing their further degradation.” PUD No. 1 of Jefferson Cty. v.
Washington Dep't of Ecology, 511 U.S. 700, 705 (1994) (citing 33 U.S.C. § 1313(d)(4)(B)).
Accordingly, EPA requires that state water quality standards include “a statewide antidegradation
policy” which will guarantee that “[e]xisting instream water uses and the level of water quality
necessary to protect the existing uses shall be maintained and protected.” 40 C.F.R. § 131.12
(1993). At a minimum, state water quality standards must satisfy these conditions, but states can
enact more stringent requirements than mandated by the EPA regulation. See 33 U.S.C. §§
1311(b)(1)(C), 1370; see also 40 C.F.R. § 131.4(a) (1993) (“As recognized by section 510 of the
Clean Water Act [33 U.S.C. § 1370], States may develop water quality standards more stringent
than required by this regulation”).
To enforce state water quality standards, and therefore comply with § 401 of the Act, States
are required “to provide a water quality certification before a federal license or permit can be issued
for activities that may result in any discharge into intrastate navigable waters.” PUD No. 1 of
Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 716 (citing 33 U.S.C. § 1341). Under
§ 401, those applying for a federal permit which sanctions conduct that “may result in any
discharge into the navigable waters” must also obtain from the State a certification that any such
11
potential “discharge will comply with the applicable provisions of sections [1311, 1312, 1313,
1316, and 1317 of this title].” PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511
U.S. at 710 (quoting 33 U.S.C. § 1341(a)). Furthermore, no specific discharge has to be present,
as “[t]he text refers to the compliance of the applicant, not the discharge.” PUD No. 1 of Jefferson
Cty. v. Washington Dep't of Ecology, 511 U.S. at 711.
Section 401(d) requires that all state-issued water quality certifications:
shall set forth any effluent limitations and other limitations, and monitoring
requirements necessary to assure that any applicant . . . will comply with any
applicable effluent limitations and other limitations, under section [1311 or 1312 of
this title] . . . and with any other appropriate requirement of State law set forth in
such certification.
33 U.S.C. § 1341(d). The limitations included in the certification become a condition on
any federal license. Id.
A. EPA Was Required to Include the State of Progress’s Certification Conditions
Without Regard to the Conditions’ Consistency with CWA Section 401(d).
When analyzing a 401 certification and state requirement question under the CWA, the
Court in PUD No. 1 wrote that courts have to determine whether the state’s condition falls within
its authority. PUD No. 1 of Jefferson City, 511 U.S. at 710. Each state has the responsibility of
regulating water pollution and use. See S.D. Warren Co. v. Maine Bd. of Environmental
Protection, 126 S. Ct. 1843, 164 L. Ed. 2d 625, 62 Env't. Rep. Cas. (BNA) 1257, 17 A.L.R. Fed.
2d 807 (U.S. 2006).
Section 404 of the CWA dredge and fill permit program defines material that is excavated
or dredged as “dredged material.” 33 C.F.R. § 323.2(c) (2006). What is used to replace aquatic
areas with dry material or to raise the bottom of a body of water is defined as “fill material.” Id. §
323.2(e). The CWA classifies dredged and fill materials as pollutants, and the discharge of
pollutants into a water of the United States is illegal without a permit. 33 U.S.C. § 1362(6) (2000)
12
and § 1311 (2000). The CWA defines “navigable waters” as “waters of United States, including
the territorial seas.” 33 U.S.C. § 1362(7) (2000). The EPA has defined “the waters of the United
States” and “navigable waters” to include most water bodies, including wetlands, streams, rivers,
lakes. 33 C.F.R. § 328.3(a)(2)(3).
In American Rivers, Inc. v. F.E.R.C., 129 F.3d 99, 28 Envtl. L. Rep. 20, 258 (2d Cir. 1997),
the court held that FERC was required by the language of §401 to include all state conditions into
licenses for hydropower plants. The court also ruled that the legality of the conditions could only
be challenged in an appropriate court of law. Id. Importantly, the court found that the plain
language in §401 of “shall become a condition” to be very persuasive in leaving FERC little power
to challenge state conditions that it believed were beyond the state’s power. Id. The court
acknowledged that the language only referred to the state’s authority to enact conditions regarding
water quality, but it wrote that this was not the same as giving FERC the ability to decide which
conditions were within the parameters of the power given to the states under §401. Id. Courts are
still in charge of decisions regarding the validity of a state’s conditions; otherwise, the conditions
are presumed to be required to be listed on any §401 permit. Id. Therefore, according to American
Rivers, an agency has no jurisdiction in this area; only the courts do.
In the present case, the remediation of the coal ash pond would be considered dredge and
fill, and so, it would be a pollutant affecting a navigable water (historically Fossil Creek), which
is a tributary to the navigable-in-fact Progress River. 33 C.F.R. § 323.2 (2006); R. at 7. Because
this case involves pollution running into a navigable water, and a state has a responsibility to
regulate water pollution and use according to S. D. Warren, the CACA conditions would fall under
a state’s authority in §401(d) to regulate water quality. According to American Rivers, an agency
does not have the authority to strike down state conditions, and they must be included on the permit
13
because of the plain language in §401, which reads that certifications “shall set forth any effluent
limitations and other limitations, and monitoring requirements necessary to assure that any
applicant…will comply… with any other appropriate requirement of State law set forth in such
certification.” 33 U.S.C. § 1341(d).
Therefore, the CACA conditions set forth by the State of Progress must be included in the
permit because the EPA does not have the power to alter or remove them.
B. The Conditions are “Appropriate Requirements of State Law”
Minimum stream flow requirements are “appropriate requirements of state law,” and
therefore, minimum stream flow requirements are permissible conditions for a § 401 certification.
PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 714. In PUD, the state
of Washington issued a § 401 certification approving the construction of a hydroelectric dam
subject to the condition that after the dam’s installation, there would remain a minimum amount
of water flowing through the original riverbed, so as to protect three species of fish. PUD No. 1
of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 709. Washington’s minimum stream
flow requirement was held to be a “permissible condition of a § 401 certification” because the
Clean Water Act's goal is to maintain the “chemical, physical, and biological integrity of the
Nation's waters”, 33 U.S.C. § 1251(a), States are required to consider the use of waters for
“propagation of fish and wildlife” under 33 U.S.C. § 1313(c)(2)(A), and Washington declared the
river a fish habitat and enacted the minimum stream flow requirement pursuant to this legislation.
The requirements enforced against EnerProg through Progress’s § 401 certification were
designed to “prevent public hazards associated with the failures of ash treatment pond containment
systems, as well as leaks from these treatment ponds into ground and surface waters.” R. 8-9.
14
This aligns quite well with § 1313(c)(2)(A)’s requirement that in promulgating water quality
standards, States must consider the “use and value for public water supplies, propagation of fish
and wildlife, recreational [and other purposes.]” 33 U.S.C. § 1313(c)(2)(A). Without requiring the
closure and handling of coal ash ponds, Progress’s water quality standards would not “be sufficient
to maintain existing beneficial uses of navigable waters, preventing their further degradation.”
PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 705.
If the MEGS coal ash pond were to fail, the ensuing environmental destruction would
indefinitely change the ecosystem of Fossil Creek and Progress River. The coal ash pond at issue
here is assumedly unlined and has been in use since 1978. R. 7. The facility has a maximum
dependable capacity of 745 megawatts. Similar electricity generating steam power plants have
spilled tens of thousands of tons of coal ash, the effect of which changed not only biological
qualities of the ecosystem surrounding the facilities, but reaped destruction on rivers miles away.2
Under the reasoning of PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511
U.S. 700 (1994), a minimum stream flow requirement was an “appropriate requirement of state
law” because the lack of water might harm three species of fish. In the present case, the destruction
which would occur if the MEGS coal ash pond were to spill would be exponentially larger on the
scales of distance and time than the potential degradation at issue in PUD. Therefore, the EAB
2 See https://www.duke-energy.com/our-company/about-us/power-plants/dan-river-steam-station (describing the
Dan River Steam Plant, which had been in operation for 63 years and had a maximum dependable capacity of 276
megawatts); http://wncn.com/2016/02/02/nc-coal-ash-spill-clean-up-continues-2-years-later/ (detailing the 2014 coal
ash spill from Dan River Steam Plant as spilling 39,000 tons of coal ash and millions of gallons of contaminated
water which spread down the Dan River for 70 miles); see also
http://www.npr.org/templates/story/story.php?storyId=99134153 (describing the Kingston Fossil Plant coal ash spill
as leaking 1.1 billion gallons of coal ash sludge across 300 acres in amounts as deep as 9 feet);
https://www.tva.gov/Energy/Our-Power-System/Coal/Kingston-Fossil-Plant (listing the Kingston Plant as 63 years
old and having the maximum dependable capacity of 1398 megawatts).
15
correctly ruled that the Progress requirements in its § 401 certification were “appropriate
requirements of State law.”
C. EPA’s Conditions Requiring Ash Pond Closure and Capping Are a Violation
of § 404 Permit Requirements.
EPA’s inclusion of the ash pond closure and remediation conditions in EnerProg’s NPDES
permit was “not in accordance with law” because the remediation conditions are subject to Corps
jurisdiction under § 404 permitting requirements. In assessing such claims, courts will first look
at “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). If Congress has not “directly
spoken to the precise question at issue,” meaning there is ambiguity present, the court “will look
first to the agency regulations which are entitled to deference if they resolve the ambiguity in a
reasonable manner.” Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 277–
78, 129 S. Ct. 2458, 2469 (2009) (citing Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984); United States v. Mead Corp., 533 U.S. 218, 226–227
(2001)). Then, the court will look to the agency’s interpretation of the regulation, which will be
“controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519
U.S. 452, 461 (1997) (internal quotations omitted).
There is no definition for “fill material” in 33 U.S.C. § 1362, so Congress has not directly
spoken to the precise question of whether an impermeable cap counts as fill material under § 404
permitting requirements. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984).
In a joint regulation, the EPA and Corps have defined the term "fill material." 33 C.F.R. §
323.3. To both agencies, fill material means “material placed in waters of the United States where
16
the material has the effect of: (i) Replacing any portion of a water of the United States with dry
land; or (ii) Changing the bottom elevation of any portion of a water of the United States.” 33
C.F.R. § 323.3(e)(1) (2008). Additionally, examples “of such fill material include, but are not
limited to: rock, sand, soil, [and] clay . . . .” 33 C.F.R. § 323.3(e)(2) (2008). The impermeable
cap would likely be made out of some combination of “rock, sand, soil, [or] clay” and the cap’s
purpose is to both replace “a water of the United States with dry land” and to change “the bottom
elevation” of a water of the United States. See id.
Here, EPA interpreted 33 U.S.C. § 1342 to apply to the impermeable cap condition, and
included the condition under the § 402 NPDES permit. 33 U.S.C. § 1342. Therefore, EPA
determined that its own regulatory definition of fill material within 33 C.F.R. § 323.3 did not apply
to the impermeable cap condition. This is necessarily so because “[b]y specifying that, ‘[e]xcept
as provided in ... [§ 404,]’ the EPA ‘may ... issue permit[s] for the discharge of any pollutant,’
§ 402(a) forbids the EPA to issue permits for fill materials falling under the Corps' § 404 authority.”
Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 129 S. Ct. 2458, 2469
(2009).
This determination was both “plainly erroneous” and “inconsistent with the regulation.”
Auer v. Robbins, 519 U.S. 452, 461 (1997). The impermeable cap would likely be made out of
some combination of “rock, sand, soil, [or] clay” and the cap’s purpose is to both replace “a water
of the United States with dry land” and to change “the bottom elevation” of a water of the United
States. See 33 C.F.R. § 323.3 (2008). As EPA’s interpretation of its own regulation is invalid,
EPA’s decision does not merit Auer deference. Therefore, EPA is not entitled to Chevron
deference and EnerProg must attain a § 404 permit from the Corps for the ash pond conditions, in
addition to the § 402 permit received from the EPA.
17
II. THE APRIL 25, 2017 EPA NOTICE IS NOT EFFECTIVE TO REQUIRE
SUSPENSION OF PERMIT COMPLIANCE DEADLINES BECAUSE EPA
OVERSTEPPED ITS STATUTORY AUTHORITY BY ISSUING THE NOTICE
AND BECAUSE EPA FAILED TO UNDERGO NOTICE AND COMMENT
RULEMAKING.
As discussed above, the APA proscribes the scope of this Court’s review of agency actions
and requires that “[t]he reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority or limitations,
or short of statutory right.” 5 U.S.C. § 706(2)(C).
In adherence to the standard of review proscribed by APA § 706(2)(c), this Court should
hold unlawful and set aside EPA’s April 25, 2017 Notice regarding the “Postponement of Certain
Compliance Dates for Effluent Limitations Guidelines and Standards for the Steam Electric Power
Generating Point Source Category.” 82 Fed. Reg. 19005, 19005 (April, 25, 2017). As discussed
below, the Notice far exceeds EPA’s authority under section 705 of the APA, 5 U.S.C. § 705, and
is thus in excess of EPA’s statutory authority. 5 U.S.C. § 706(2)(C). The Notice also represents
an attempt by EPA to do with a mere stroke of a pen what EPA is statutorily obliged to do through
notice and comment rulemaking, 5 U.S.C. § 553, and is thus in excess of EPA’s statutory
limitations. 5 U.S.C. §706(2)(c).
A. APA § 705 Does Not Authorize EPA to Postpone the Compliance Date of a
Duly Promulgated Rule that has Already Become Effective.
Far from endowing agencies with sweeping powers to block implementation of existing
rules or regulations, section 705 of the APA only permits that “[w]hen an agency, finds that justice
so requires, it may postpone the effective date of action taken by it, pending judicial review.” 5
U.S.C. § 705. In Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28, 31 (3d. Cir. 1995),
the court noted that “effective dates” are a separate and distinct concept than “compliance dates.”
18
In Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL at 8 (N.D. Cal. Aug.
30, 2017), the court was presented with a federal agency (the Office of Natural Resources Revenue
or “ONRR”) that contended – like EPA does here – that the term “effective date” as used in APA
§ 705 could be construed to mean “compliance date.” Following the Supreme Court’s suggestion
that courts “ordinarily resist reading words or elements into a statute that do not appear on its face,”
Bates v. United States, 522 U.S. 23, 29, 118 S. Ct. 285 (1997), the Becerra court determined that
the plain language of APA § 705 only authorizes postponement of “effective dates” and not
“compliance dates.” Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL at 9 (N.D.
Cal. Aug. 30, 2017).
Although the lack of any meaningful ambiguity in the plain language of APA § 705
essentially forecloses the possibility of deference playing a critical role in the Court’s analysis, it
is notable that the Becerra court did not extend any level of deference to ONRR’s interpretation
of APA § 705. Id. Instead, the court found that United States v. Mead Corp., 533 U.S. 218, 226–
27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) and Price v. Stevedoring Servs. of Am., Inc., 697 F.3d
820, 826 (9th Cir. 2012), necessitate that Chevron deference only applies “when an agency is
exercising authority delegated to it by Congress to administer a particular statute, and that
Congress has not delegated ONRR authority to administer the APA.” Becerra v. United States
Dep’t of Interior, No. 17–cv–02376–EDL at 7 (N.D. Cal. Aug. 30, 2017). Mead Corp. further
limits the potential for Chevron deference to be applied in cases involving the APA by stating that
“administrative implementation of a particular statutory provision qualifies for Chevron deference
when it appears that Congress delegated authority to the agency generally to make rules carrying
the force of law, and that the agency interpretation claiming deference was promulgated in the
exercise of that authority.” Mead Corp., 533 U.S. at 226–27.
19
Here, as in Becerra, EPA has not demonstrated that Congress ever delegated authority to
EPA to interpret APA § 705 or any other provisions of the APA. As a result of this lack of
delegation (compounded with a lack of ambiguity in the statute), EPA’s interpretation of APA §
705 is not entitled to deference. EPA’s entirely unsupported assertion that “compliance dates” are
“within the meaning of the term effective date,” 82 Fed. Reg. 19005, 19005 (April 25, 2017) runs
contrary to the weight of authority that finds otherwise. Becerra v. United States Dep’t of Interior,
No. 17–cv–02376–EDL at 7 (N.D. Cal. Aug. 30, 2017); Silverman v. Eastrich Multiple Inv’r Fund,
L.P., 51 F.3d 28, 31 (3d. Cir. 1995). Accordingly, this Court should find that EPA exceeded the
limited statutory authority it was provided under APA § 705 when it issued its April 25, 2017
Notice to postpone the compliance dates of a rule that had already become effective. Because EPA
acted in excess of its statutory authority, its Notice should be set aside pursuant to 5 U.S.C. §
706(2)(C).
B. EPA May Not Repeal a Duly Promulgated Rule Without Undergoing Notice
and Comment Rulemaking.
Attempting to repeal a rule without undergoing notice and comment rulemaking is a
violation of 5 U.S.C. § 706(2)(C). The APA unambiguously states that “[r]ule making means
agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5) (emphasis
added). A rule is defined as the “whole or a part of an agency statement of general . . . 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).
Under § 553 of the APA, agencies are required to engage in two practices before
promulgating a rule. First, “[g]eneral notice notice of proposed rule making shall be published in
the Federal Register.” 5 U.S.C. § 553(b). Second, after notice, the “agency shall give interested
persons an opportunity to participate in the rule making through submission of written data, views,
20
or arguments” and “[a]fter consideration of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C.
§ 553(c).
There are a few exceptions to § 553’s notice and rule-making requirements. These include
procedural rules, such as an “agency organization, procedure, or practice,” as well as non-
legislative rules like general statements of policy or interpretive rules. 5 U.S.C. § 553(b)(3)(A).3
“Whereas a clarification may be embodied in an interpretive rule that is exempt from notice and
comment requirements, 5 U.S.C. § 553(b)(3)(A), see Am. Mining Cong. v. Mine Safety & Health
Admin., 995 F.2d 1106, 1109 (D.C.Cir. 1993), new rules that work substantive changes in prior
regulations” are subject to the APA’s notice and comment procedures. Sprint Corp. v. F.C.C., 315
F.3d 369, 374 (D.C. Cir. 2003); see also Marshall v. Western Union Tel. Co., 621 F.2d 1246, 1250
(3d Cir. 1980) (“We believe that the district court erred in deferring to the Secretary's position
because the workweek standard is in reality not an ‘interpretation’ of the governing statute but
rather a substantive amendment of the regulations. As such, we believe the Secretary must engage
in a rulemaking procedure conforming with the notice and comment provisions of [§ 553].”).
An “interpretative rule simply states what the administrative agency thinks the underlying
statute means, and only ‘reminds affected parties of existing duties.’” United Techs. Corp. v.
E.P.A., 821 F.2d 714, 718 (D.C. Cir. 1987) (quoting General Motors Corp. v. Ruckelshaus, 742
F.2d 1561, 1565 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1074, (1985)). “A rule that
3 The exception most widely used by agencies is the “good cause” exception, where an agency finds for “good
cause” that giving notice and an opportunity for comment would be “impracticable, unnecessary, or contrary to the
public interest.” 5 U.S.C. § 553(b)(3)(B) (holding that agencies must provide “a brief statement of reasons”
supporting the good cause invocation); see S. California Aerial Advertisers’ Ass'n v. F.A.A., 881 F.2d 672, 677 (9th
Cir. 1989). Here, EPA provided no “brief statement of reasons” and have never asserted that its amendment of 45
Fed. Reg. 48620 fell under the protection of the “good cause” exception.
21
clarifies a statutory term is the classic example of an interpretative rule.” Nat'l Family Planning
& Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 236 (D.C. Cir. 1992) (citing Alcaraz v.
Block, 746 F.2d 593, 613 (9th Cir. 1984) (explaining that interpretative rules “ ‘are those which
merely clarify or explain existing law or regulations,’ ” and “are essentially hortatory and
instructional”); Batterton v. Marshall, 648 F.2d 694, 705 (D.C. Cir. 1980) (holding that
interpretative rules serve “an advisory function explaining the meaning given by the agency to a
particular word or phrase in a statute or rule it administers”). Regulations are usually deemed to
be interpretative when they only track the statutory requirements and “simply explain [ ] something
the statute already required.” Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979
F.2d 227, 237 (D.C. Cir. 1992) (quoting Alcaraz, 746 F.2d at 613).
“Conversely, a legislative or substantive rule is one that does more than simply clarify or
explain a regulatory term, or confirm a regulatory requirement, or maintain a consistent agency
policy.” Id. A rule is considered legislative “if by its action the agency intends to create new law,
rights or duties.” United Techs. Corp. v. E.P.A., 821 F.2d 714, 718 (D.C. Cir. 1987) (quoting
General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir. 1984) (en banc), cert.
denied, 471 U.S. 1074, (1985)) (internal quotation marks omitted); see also Pickus v. United States
Bd. of Parole, 507 F.2d 1107, 1113 (D.C.Cir. 1974) (holding that guidelines for determining parole
eligibility were “not interpretations of a statute's meaning,” but instead were self-imposed
“controls over the manner and circumstances in which the agency will exercise its plenary
power.”). “Thus, a rule is legislative if it attempts ‘to supplement [a statute], not simply to construe
it.’” Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 237 (D.C. Cir.
1992) (quoting Chamber of Commerce v. OSHA, 636 F.2d 464, 469 (D.C.Cir. 1980)) (citations
omitted). “[I]f a second rule repudiates or is irreconcilable with a prior legislative rule, the second
22
rule must be an amendment of the first; and, of course, an amendment to a legislative rule must
itself be legislative.” Sprint Corp. v. F.C.C., 315 F.3d 369, 374 (D.C. Cir. 2003) (quoting National
Family Planning & Reproductive Health Ass'n v. Sullivan, 979 F.2d 227, 235 (D.C. Cir. 1992)
(quotations and citations omitted)). “[O]nce a regulation is adopted by notice-and-comment
rulemaking,” substantive changes to the regulation’s text “may be changed only in that [same]
fashion.” Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987).
Even after an agency changes a policy through regular notice and comment procedures, the
agency “must show that there are good reasons for the new policy,” but “it need not demonstrate
to a court's satisfaction that the reasons for the new policy are better than the reasons for the old
one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009).
“Ordinarily, when a regulation is not promulgated in compliance with the APA, the
regulation cannot be ‘afforded the force and effect of law.’” Fertilizer Inst. v. U.S. E.P.A., 935
F.2d 1303, 1312 (D.C. Cir. 1991) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 313 (1979))
(internal quotations and citations omitted). Accordingly, if a court finds that an agency violates
the notice and comment provisions of § 553 when promulgating a rule, then the rule may be
vacated. Nat. Res. Def. Council v. E.P.A., 643 F.3d 311, 320–21 (D.C. Cir. 2011) (holding an EPA
Guidance was invalid on procedural grounds without addressing substantive claims because “EPA
issued the Guidance in violation of the Administrative Procedure Act's notice and comment
requirement,” and because “preserving the integrity of the notice and comment process strongly
outweighs” any injury which might occur because of the delay in addressing a group’s substantive
challenges). However, when necessary, an unlawfully created rule can be left in place while the
agency provides the proper procedural remedy. See, e.g., Fertilizer Inst. v. U.S. E.P.A., 935 F.2d
1303, 1312 (D.C. Cir. 1991); Western Oil & Gas Assoc. v. EPA, 633 F.2d 803, 813 (9th Cir. 1980);
23
Chemical Mfrs. Ass'n v. EPA, 870 F.2d 177, 236 (5th Cir. 1989), cert. denied, 495 U.S. 910 (1990).
But see Alaniz v. OPM, 728 F.2d 1460, 1469–70, n. 7 (Fed. Cir. 1984) (declining to leave in place
procedurally inadequate regulations that are not “harmless”).
Presented with factual circumstances bearing a strong resemblance to those before this
Court, the Federal District Court for the Northern District of California ruled in Becerra v. United
States Dep’t of Interior, No. 17–cv–02376–EDL (N.D. Cal. Aug. 30, 2017), that a recent attempt
by the Office of Natural Resources Revenue (“ONRR”) to postpone a duly promulgated rule
without first engaging in notice and comment rulemaking was a violation of the APA, 33 U.S.C.
§ 553. In outlining the important role the APA plays in providing order to the rulemaking process,
the Becerra court advised that
The APA does not permit an agency to “guide a future rule through the rulemaking
process, promulgate a final rule, and then effectively repeal it, simply by
indefinitely postponing its operative date. The APA specifically provides that the
repeal of a rule is rulemaking subject to rulemaking procedures.”
Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL (N.D. Cal. Aug. 30,
2017) (quoting Nat. Res. Def. Council, Inc. v. EPA, 683 F. 2d 752, 762 (3d. Cir. 1982).
In the present case, EPA’s April 25, 2017 Notice must be set aside because it attempts to
repeal a rule that was duly promulgated through notice and comment rulemaking without
undertaking such statutorily mandated procedures itself. It is uncontested that the 2015 ELGs fall
within the statutory definition of “rule” found at 5 U.S.C. § 551(4). The 2015 ELGs also fall
squarely within the definition of a “legislative rule.” United Techs. Corp. v. E.P.A., 821 F.2d 714,
718 (D.C. Cir. 1987) (finding that a rule is considered to be legislative “if by its action the agency
intends to create new law, rights or duties.”) (quoting General Motors Corp. v. Ruckelshaus, 742
F.2d 1561, 1565 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1074, (1985)). For example,
24
the 2015 ELGs create new duties for polluters by, among other things, updating the Best Available
Technology standard used to formulate NPDES permit limits. R. at 9. Unsurprisingly, the 2015
ELGs were promulgated by EPA following the traditional notice and comment procedures
enshrined in 5 U.S.C. § 553. See Effluent Limitations Guidelines and Standards for the Steam
Electric Power Generating Point Source Category, 80 Fed. Reg. 67,838 (Nov. 3, 2015).
In stark contrast to EPA’s earlier detailed analysis of the costs and benefits arising from
the 2015 ELGs, see. Id., EPA’s April 25, 2017 Notice states merely that EPA is aware of objections
to the 2015 ELGs; has been informed of new data relevant to the ELGs; and “wishes to review
these data.” 82 Fed. Reg 19005, 19005 (April, 25, 2017). Despite the lack of any process even
resembling notice and comment rulemaking, EPA has indefinitely postponed the “compliance
dates that have not yet passed” contained in various sections of the 2015 ELGs. 82 Fed. Reg 19005,
19006 (April, 25, 2017). Such an action is tantamount to a suspension or repeal of a rule without
notice and comment. See. Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 814-818
(D.C. Cir. 1983) (finding that EPA’s deferral of a permitting process for hazardous waste
incinerators amounted to an impermissible suspension of a regulation without notice and
comment). Because EPA’s April 25, 2017 Notice amounts to a suspension or repeal of the 2015
ELGs in violation of 5 U.S.C. § 553, this Court should not allow the Notice to be afforded the
“force [or] effect of law.” Fertilizer Inst. v. U.S. E.P.A., 935 F.2d at 1312 (quoting Chrysler Corp.
v. Brown, 441 U.S. at 313) (internal quotations and citations omitted). Like the Becerra court, this
Court should prevent yet another federal agency from flouting the requirements of the APA
without being held to account. EPA has acted outside the bounds of its statutory limitations by
attempting to make and end run around the APA and its April 25, 2017 should accordingly be set
aside pursuant to 5 U.S.C. § 706(2)(C).
25
III. EPA REGION XII PROPERLY RELIED ON BEST PROFESSSIONAL
JUDGMENT TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT
WASTES, INDEPENDENT OF THE APPLICABILITY OF THE 2015 ELG.
Reliance on Best Professional Judgment (BPJ) is justified even if the 2015 ELGS are not
in effect. Use of BPJ for pollutants not covered by the ELGs for an industry category “[w]here
promulgated effluent limitation guidelines only apply to certain aspects of a discharger's operation,
or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis.”
40 C.F.R. § 125.3(c)(3).
There is a lot of work that goes into conducting studies on industries to establish
technology-based effluent limitations, and because of this, limitation guidelines do not exist yet
for all industrial sources. § 7.37. Best Professional Judgment, 23 Wash. Prac., Environmental Law
and Practice § 7.37 (2d ed.). Also, sometimes an industrial process changes or new scientific
information is revealed, leading to the limitation guidelines no longer being appropriate. Id. Any
of these situations call for case-by-case effluent limits, and the EPA is allowed under federal law
to set these using Best Professional Judgment. Id., 33 U.S.C. § 1342(a); 40 C.F.R. § 125.3(c)(2).
Effluent limitations set using Best Professional Judgment involve engineers and economists to
determine what technology to use or control and at what cost. § 7.37. Best Professional Judgment,
23 Wash. Prac., Environmental Law and Practice § 7.37 (2d ed.).
In NRDC v. EPA, industry-wide, nationwide technology-based effluent limitations had not
yet been promulgated for drilling pollutant discharge. Nat. Res. Def. Council, Inc. v. U.S. E.P.A.,
863 F.2d 1420, 1424 (9th Cir. 1988). In that case, the court wrote that in that situation, the EPA
may establish effluent limitations on a case-by-case basis. Id.
26
None of the parties in the present case dispute that the runoff from the MEGS coal ash
pond is comprised in part of mercury, selenium, arsenic, and other toxic pollutants. These are not
regulated by the 1982 ELGS. Applying the rules from § 402(a)(1) of the Clean Water Act and the
logic from NRDC v. EPA, because the pollutants coming from the MEGS plant are not regulated
by the 1982 ELGS, it does not make a difference whether or not the 2015 Steam Electric Power
Generating Industry Effluent Limitation Guidelines are applicable or effective. Because these
pollutants did not have a concrete limitation set in stone in the 1982 ELGs, if in the EPA’s “best
professional judgment,” a zero-discharge requirement is the appropriate limitation, that should be
the rule. Thus, EPA may rely on Best Professional Judgment as an alternative ground to require
zero discharge of coal ash transport wastes.
IV. NPDES PERMITTING REQUIREMENTS APPLY TO ENERPROG’S
OUTFLOW-8, WHICH DISCHARGES POLLUTANTS INTO THE MEGS ASH
POND.
As discussed in depth above, the APA’s model of rulemaking is a methodical process with
safeguards meant to prevent or curb abuses of administrative authority. Under § 553 of the APA,
agencies are required to engage in two practices before promulgating a rule. First, “[g]eneral
notice notice of proposed rule making shall be published in the Federal Register.” 5 U.S.C. §
553(b). Second, after notice, the “agency shall give interested persons an opportunity to participate
in the rule making through submission of written data, views, or arguments” and “[a]fter
consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a
concise general statement of their basis and purpose.” 5 U.S.C. § 553(c).
New rules that work substantive changes in prior regulations” are subject to the APA’s
notice and comment procedures. Sprint Corp. v. F.C.C., 315 F.3d 369, 374 (D.C. Cir. 2003); see
also Marshall v. Western Union Tel. Co., 621 F.2d 1246, 1250 (3d Cir. 1980). “Conversely [to an
27
interpretative rule], a legislative or substantive rule is one that does more than simply clarify or
explain a regulatory term, or confirm a regulatory requirement, or maintain a consistent agency
policy.” Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 237 (D.C.
Cir. 1992). A rule is considered legislative “if by its action the agency intends to create new law,
rights or duties.” United Techs. Corp. v. E.P.A., 821 F.2d 714, 718 (D.C. Cir. 1987) (quoting
General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir. 1984) (en banc), cert.
denied, 471 U.S. 1074, (1985)) (internal quotation marks omitted); see also Pickus v. United States
Bd. of Parole, 507 F.2d 1107, 1113 (D.C.Cir. 1974). “Thus, a rule is legislative if it attempts ‘to
supplement [a statute], not simply to construe it.’” Nat'l Family Planning & Reprod. Health Ass'n,
Inc. v. Sullivan, 979 F.2d 227, 237 (D.C. Cir. 1992) (quoting Chamber of Commerce v. OSHA, 636
F.2d 464, 469 (D.C.Cir. 1980)) (citations omitted). “[I]f a second rule repudiates or is
irreconcilable with a prior legislative rule, the second rule must be an amendment of the first; and,
of course, an amendment to a legislative rule must itself be legislative.” Sprint Corp. v. F.C.C.,
315 F.3d 369, 374 (D.C. Cir. 2003) (quoting National Family Planning & Reproductive Health
Ass'n v. Sullivan, 979 F.2d 227, 235 (D.C. Cir. 1992) (quotations and citations omitted)). “[O]nce
a regulation is adopted by notice-and-comment rulemaking,” substantive changes to the
regulation’s text “may be changed only in that [same] fashion.” Homemakers N. Shore, Inc. v.
Bowen, 832 F.2d 408, 413 (7th Cir. 1987).
“Ordinarily, when a regulation is not promulgated in compliance with the APA, the
regulation cannot be ‘afforded the force and effect of law.’” Fertilizer Inst. v. U.S. E.P.A., 935
F.2d 1303, 1312 (D.C. Cir. 1991) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 313 (1979))
(internal quotations and citations omitted). Accordingly, if a court finds that an agency violates
28
the notice and comment provisions of § 553 when promulgating a rule, then the rule may be
vacated. Nat. Res. Def. Council v. E.P.A., 643 F.3d 311, 320–21 (D.C. Cir. 2011).
In the present case, EPA provides that the applicable definition of “waters of the United
States under the Clean Water Act means “[a]ll waters which are currently used, were used in the
past, or may be susceptible to use in interstate or foreign commerce . . . .” 40 C.F.R. § 122.2
(1983). It also includes “[a]ll impoundments of waters otherwise identified as waters of the United
States under this section.” Id. Waste treatment systems (“WTS”) are exempted under subsection
(2) which includes “treatment ponds or lagoons designed to meet the requirements of the Clean
Water Act.” Id. The regulation continues, applying the exclusion “only to manmade bodies of
water which neither were originally created in waters of the United States (such as disposal area
in wetlands) nor resulted from the impoundment of waters of the United States.” Id. (citing to
Note 1 of the section). Note 1 states that at “45 FR 48620, July 21, 1980, the Environmental
Protection Agency suspended until further notice in § 122.2, the last sentence, beginning ‘This
exclusion applies ___’ in the definition of ‘Waters of the United States.’ This revision continues
that suspension.” Id.
In 45 Fed. Reg. 48620, the EPA stated that its purpose for the last sentence was “to ensure
that dischargers did not escape treatment requirements by impounding waters of the United States
and claiming the impoundment was a waste treatment system, or by discharging wastes into
wetlands.” See Consolidated Permit Regulations, 45 Fed. Reg. at 48620. The EPA claimed that
they had amended the definition because industries had objected to the definition of the Waters of
the United States on the grounds that “the language of the regulation would require them to obtain
permits for discharges into existing waste treatment systems, such as power plant ash ponds, which
had been in existence for many years,” and that in many cases, the EPA had “issued permits for
29
discharges from, not into, these systems.” Id. The EPA agreed that “the regulation should be
carefully re-examined and that it may be overly broad” and suspended the sentence which qualified
WTS as waters of the United States when they had been created from impounding WotUS. Id.
Accordingly, the Agency is today suspending its effectiveness. The EPA stated that it intended to
promptly “develop a revised definition and to publish it as a proposed rule for public comment”
and at the conclusion “that rulemaking, EPA will amend the rule, or terminate the suspension.”
Id. 45 Fed. Reg. 48620 then held that the EPA had “[a]mended” 40 C.F.R by suspending the last
sentence beginning with "This exclusion applies,” until further notice. Id.
In the present case, the EPA made a legislative rule. By removing the applicability of the
last sentence of 45 Fed. Reg. 48620 and thus exempting all waste treatment systems (WTS), EPA
made a substantive change to a prior regulation. After considering only unsolicited objections to
the new regulation from industries, EPA suspended the last sentence, and therefore amended the
rule, stating that “the regulation should be carefully re-examined” because “it may be overly
broad.” In doing so, EPA did not “clarify” or “explain” a term, nor did EPA “confirm” a
requirement. See Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227,
237 (D.C. Cir. 1992). If anything, the suspension was indicative of furthering an inconsistent
agency policy, not one which was “consistent.” Id. EPA’s action created “new law” by exempting
“manmade bodies of water which . . . resulted from the impoundment of waters of the United
States” from NPDES permitting requirements. United Techs. Corp. v. E.P.A., 821 F.2d 714, 718
(D.C. Cir. 1987). This action created a “right” for industry owners to not comply with the
permitting procedures for any waste treatment system created from original waters of the United
States. Id. 45 Fed. Reg. 48620 represents “a second rule” which “repudiate[d]”, and thus was
“irreconcilable” with, the “prior legislative rule”, 45 Fed. Reg. 33424. See Sprint Corp. v. F.C.C.,
30
315 F.3d 369, 374 (D.C. Cir. 2003). Therefore, 45 Fed. Reg. 48620 “must be an amendment of”
45 Fed. Reg. 33424, and “an amendment to a legislative rule must itself be legislative.” Id.
As 45 Fed. Reg. 33424 was “adopted by notice-and-comment rulemaking,” when EPA
promulgated 45 Fed. Reg. 48620, a substantive change to the text of 45 Fed. Reg. 33424, it was
supposed to make such changes “only in [the same] fashion” of notice-and-comment rulemaking.
See Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987).
EPA did not provide the public with either notice or the opportunity to comment. Under 5
U.S.C. § 551(5), a rule-making occurs whenever an agency amends or repeals a rule. EPA itself
labelled the rule as “amended” in 45 Fed. Reg. 48620. Merely because the suspension has been
included within two subsequent definitions does not excuse EPA from notice and comment
requirements whenever it amended the rule. As EPA listened to the concerns of industries by
amending the rule, EPA should have also given the public an opportunity to comment on their
proposed determination before finalizing the rule. By doing so, it would have allowed citizens the
chance to voice alternatives, such as requiring industries to line any ponds or lagoons within a
WTS, and in the absence of such lining, then those WTS would be considered WotUS.
Therefore, the 45 Fed. Reg. 48620 should be vacated because EPA did not promulgate the
amendment by the required procedures under APA § 553. Keeping the rule in place while EPA
provides the “proper procedural remedy” is not necessary, as it would only subject those applicable
WTS to permitting requirements which they have gratuitously been exempted from for 37 years.
If EPA wishes to enact the same rule, it must give the public an opportunity to comment on their
decision.
31
Accordingly, 45 Fed. Reg. 48620 should be struck down because it cannot be “afforded
the force and effect of law.” See Fertilizer Inst. v. U.S. E.P.A., 935 F.2d 1303, 1312 (D.C. Cir.
1991). As a result, EnerProg should have to attain a § 402 permit for OF-8 at MEGS.
V. THE ASH POND CLOSURE AND CAPPPING PLAN REQUIRES A PERMIT FOR
THE DISCHARGE OF FILL MATERIAL PURSUANT TO SECTION 404 OF THE
CWA.
A. The Lack of a Recapture Provision Will Not Prevent the Coal Ash Pond from
Becoming Subject to Section 404 of the CWA.
The EAB’s finding that the “40 C.F.R. section 122.2 exemption for waste treatment
systems does not contain any recapture provision that would convert [the coal ash ponds] back into
waters of the United States upon their retirement,” R. at 13, demonstrates what appears to be a
fundamental misconception regarding the role of recapture provisions in the CWA. A brief
examination of the recapture provision in section 404 of the CWA should shed light on the EAB’s
misunderstanding. The section 404 recapture provision, CWA § 404(f)(2), 33 U.S.C. § 1344(f)(2)
acts in close concert with the major section 404 exemptions found at CWA § 404(f)(1), 33 U.S.C.
§ 1344(f)(1). Former Senator Edmund Muskie, a sponsor of the legislation that added these
exemptions described them as such:
New subsection 404(f) provides that Federal permits will not be required for those
narrowly defined activities that cause little or no adverse effects either individually
or cumulatively. While it is understood that some of these activities may necessarily
result in incidental filling and minor harm to aquatic resources, the exemptions do
not apply to discharges that convert extensive areas of water into dry land or impede
circulation or reduce the reach or size of the water body.”
3 Leg.Hist. 474 (1977). In contrast, “[s]ection (f)(2), the ‘recapture provision,’ seizes upon certain
activities which on their face appear exempt in order to bring them back under the statute.” United
States v. Cumberland Farms of Connecticut, Inc., 647 F.Supp 1166, 1176 (D. Mass., 1986). Thus,
32
the recapture provision is necessary to preserving the intentionally narrow scope of the exemptions
with which it is paired.
Compared to the 404(f)(1) exemptions, the 40 C.F.R. § 122.2 exemption is significantly
broader in scope. In fact, the indefinite stay which FCW vigorously opposes makes the exemption
even broader than originally designed. R. at 12. Additionally, no recapture provision is needed in
the 40 C.F.R. § 122.2 exemption because, unlike the 404(f)(2) exemption, there is no need for a
strong deterrence against those who would take advantage of the exemption. EnerProg is, after
all, only closing and capping its ash pond because it is under a state mandate to do so. These
distinctions matter because the Court should not assume that because recapture provisions are
necessary in one context that they are necessary in another. For example, once the EnerProg coal
ash pond can no longer be accurately characterized as a waste treatment system, there will be no
statutory or regulatory basis on which to subject the pond to the 40 C.F.R. § 122.2 exemption.
B. The Abandoned Coal Ash and the Cap Material Deposited on the Coal Ash
Pond Will Subject the Closure and Capping Plant to CWA Section 404 Permit
Requirements.
As FCW has contended before, both coal ash and cap material meet the regulatory
definition of “fill.” “The term fill material means 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 land; or (ii) Changing the bottom elevation of any portion of a water of the United States.” 33
C.F.R. § 323.2. Both coal ash and the cap fill material will replace portions of Fossil Creek and an
adjoining creek with dry land and change the bottom elevation. As such, the filling and capping
the ash pond will require a fill permit pursuant to 33 U.S.C. § 1344.
33
CONCLUSION
For the foregoing reasons, Petitioner, Fossil Creek Watchers, Inc. respectfully requests
that this court remand the EnerProg NPDES permit for further consideration.
Respectfully Submitted,
__________________________
Attorneys for Petitioner
November 27, 2017 Fossil Creek Watchers, Inc.