Team No. 53

IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

September Term, 2017

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 ENERPROG, L.L.C., Petitioner

Oral Argument Requested

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iv STATEMENT OF JURISDICTION............................................................................................... 1

STATEMENT OF THE ISSUES.................................................................................................... 1

STATEMENT OF THE CASE ....................................................................................................... 1

Procedural History ...................................................................................................................... 1

Statement of Facts ....................................................................................................................... 2

SUMMARY OF THE ARGUMENT ............................................................................................. 3

ARGUMENT .................................................................................................................................. 5

I. EPA MUST REVIEW PROGRESS’S STATE CERTIFICATION AND REJECT THE CONDITIONS REQUIRING ASH POND CLOSURE. ............................................................ 5

A. EPA must review Progress’s Section 401 certification. ............................................... 6

B. The ash pond closure and remediation requirements are not “appropriate requirements of State law.” ..................................................................................................... 8

II. EPA’S APRIL 25 NOTICE IS EFFECTIVE TO SUSPEND THE COMPLIANCE DEADLINES FOR ACHIEVING ZERO DISCHARGE OF COAL ASH TRANSPORT WASTE INCLUDED IN ENERPROG’S NPDES PERMIT. .................................................. 12

A. EPA found that justice requires it to postpone the compliance dates. ........................ 13

B. The 2015 ELGs are pending judicial review. ............................................................. 15

C. Section 705 authorizes EPA to postpone compliance dates that have not yet passed. 16

D. EPA was not required to provide notice and comment before issuing the Postponement. ....................................................................................................................... 18

III. EPA MAY NOT RELY ON BEST PROFESSIONAL JUDGMENT AS AN ALTERNATIVE GROUND TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT WASTE. ........................................................................................................... 19

A. Permit writers may not rely on BPJ after EPA has promulgated applicable national effluent standards. ................................................................................................................. 20

B. The permit writer’s use of BPJ as a basis for the zero discharge requirement was arbitrary and capricious. ........................................................................................................ 22

IV. INTERNAL DISCHARGES INTO THE MEGS ASH POND DO NOT REQUIRE AN NPDES PERMIT. ..................................................................................................................... 23

A. EPA had statutory authority to issue the 1980 Stay under the CWA. ........................ 24

B. This Court should not vacate EPA’s long-established 1980 Stay based on procedural flaws. .................................................................................................................................... 24

C. The 1980 Stay clarifies that EPA intended to exempt waste treatment systems constructed before the definition of “waters of the United States” was promulgated. ......... 27

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V. THE CLOSURE AND CAPPING OF THE MEGS ASH POND DOES NOT REQUIRE A SECTION 404 PERMIT FOR THE DISCHARGE OF FILL MATERIAL. ..... 29

A. Closing the ash pond does not cause it to become a water of the United States. ....... 30

B. Dewatering and capping are not discharges. .............................................................. 32

C. The coal ash and impermeable cap are not fill materials. .......................................... 33

CONCLUSION ............................................................................................................................. 34

iv

TABLE OF AUTHORITIES

Cases

Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D. Vt. 1992)........................................................................................... 32, 33

Alcoa Power Generating Inc. v. FERC, 643 F.3d 963 (D.C. Cir. 2011) .................................................................................................... 7

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) .................................................................................................. 25

Am. Mining Cong. v. U.S. Army Corps of Eng’rs, 951 F. Supp. 267 (D.D.C. 1997) ............................................................................................... 32

Am. Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997).................................................................................................. 6, 7, 8

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ...................................................................................................................... 9

Atl. States Legal Found., Inc. v. Eastman Kodak Co., 809 F. Supp. 1040 (W.D.N.Y. 1992) ........................................................................................ 11

Auer v. Robbins, 519 U.S. 452 (1997) .................................................................................................................. 28

Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897 (5th Cir. 1983) .................................................................................................... 33

Becerra v. U.S. Dep’t. of Interior, 2017 U.S. Dist. LEXIS 150458 (N.D. Cal. Aug. 30, 2017)...................................................... 16

Cent. & S.W. Servs. v. U.S. EPA, 220 F.3d 683 (5th Cir. 2000) .............................................................................................. 25, 26

Cent. Me. Power Co. v. FERC, 252 F.3d 34 (1st Cir. 2001) ................................................................................................. 25, 26

Cf. Russello v. United States, 464 U.S. 16 (1983) .................................................................................................................... 32

Chase Bank USA, N.A. v. McCoy, 562 U.S. 195 (2011) .................................................................................................................. 28

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) .................................................................................................................... 5

v

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) ............................................................................................................ 28, 29

City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) .................................................................................................. 7, 8

Coeur Alaska Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) .................................................................................................................. 33

Commonwealth Power Co. v. Dep’t of Nat. Res., Nos. 204399, 210844, 2000 WL 33521869 (Mich. Ct. App. March 21, 2000) ........................ 11

Consolidation Coal Co. v. EPA, 537 F.2d 1236 (4th Cir. 1976) .................................................................................................... 6

De. Riverkeeper Net. v. Sec’y Pa. Dep’t of Envtl. Protection, 833 F.3d 360 (3rd Cir. 2016) ...................................................................................................... 7

Decker v. Nw. Env. Def. Center, 568 U.S. 597 (2013) .................................................................................................................. 28

Gates & Fox Co. v. Occupational Safety and Health Review Comm’n, 790 F.2d 154 (D.C. Cir. 1986) .................................................................................................. 28

Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) .................................................................................................. 26

Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995) .................................................................................................... 25

Int’l Union, United Mine Workers, v. Fed. Mine Safety & Health Admin., 920 F.2d 960 (D.C. Cir. 1990) .................................................................................................. 26

Jama v. Immigration & Customs Enf’t, 543 U.S. 335 (2005) .................................................................................................................. 13

Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991) .................................................................................................... 8

Michigan v. EPA, 135 S. Ct. 2699 (2015) ................................................................................................................ 6

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................................. 20, 22

N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) .................................................................................................... 31

vi

Nat. Res. Def. Council v. U.S. EPA, 279 F.3d 1180 (9th Cir. 2002) .................................................................................................... 8

Nat. Res. Def. Council v. U.S. EPA, 683 F.2d 752 (3d Cir. 1982)................................................................................................ 19, 25

Nat. Res. Def. Council v. U.S. EPA, 808 F.3d 556 (2d Cir. 2015)...................................................................................................... 25

Nat. Res. Def. Council v. U.S. EPA, 859 F.2d 156 (D.C. Cir. 1988) ............................................................................................ 20, 21

Nat. Res. Def. Council v. U.S. EPA, 863 F.2d 1420 (9th Cir. 1988) .................................................................................................. 21

Niagara Mohawk Power Corp. v. N.Y. State Dep’t of Envtl. Conservation, 624 N.E.2d 146 (N.Y. 1993) ............................................................................................... 11, 12

Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) .................................................................................................... 30

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015) .............................................................................................................. 29

PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994) ........................................................................................................ 9, 10, 11

Ratzlaf v. United States, 510 U.S. 135 (1994) .................................................................................................................. 14

Recording Indust. Ass’n of Am. v. Copyright Royalty Tribunal, 662 F.2d 1 (D.C. Cir. 1981) ...................................................................................................... 14

Riverkeeper, Inc. v. U.S. EPA, 358 F.3d 174 (2d Cir. 2004 ....................................................................................................... 20

S. Shrimp All. v. United States, 33 C.I.T. 560 (2009) ................................................................................................................. 14

Safety-Kleen Corp. v. EPA., 1996 U.S. App. LEXIS 2324 (D.C. Cir. Jan. 19,1996) ............................................................. 19

Sasser v. Admin’r, U.S. EPA, 990 F.2d 127 (4th Cir. 1993) .................................................................................................... 34

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

vii

Sw. Elec. Power. Co. v. EPA, 5th Cir. No. 15-60821 (5th Cir. Nov. 20, 2015) ................................................................. 12, 15

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (2012) .................................................................................................................. 17

Tex. Oil & Gas Ass’n v. U.S. EPA, 161 F.3d 923 (5th Cir. 1998) .................................................................................................... 20

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978) ............................................................................................................ 14, 18

Statutes

33 U.S.C. § 1251 (2012) ........................................................................................................... 5, 24

33 U.S.C. § 1311(2012) ................................................................................................................ 23

33 U.S.C. § 1313 (2012) ............................................................................................................... 10

33 U.S.C. § 1341 (2012) ................................................................................................... 6, 7, 9, 34

33 U.S.C. § 1342 (2012) ............................................................................................... 1, 20, 21, 22

33 U.S.C. § 1344 (2012) ......................................................................................................... 30, 31

33 U.S.C. § 1361 (2012) ......................................................................................................... 23, 24

33 U.S.C. § 1362 (2012) ........................................................................................................ passim

33 U.S.C. § 1369 (2012) ................................................................................................................. 1

5 U.S.C. § 551 (2012) ............................................................................................................. 16, 17

5 U.S.C. § 553 (2012) ................................................................................................. 18, 19, 25, 29

5 U.S.C. § 705 (2012) ............................................................................................................. 12, 13

5 U.S.C. § 706 (2012) ............................................................................................................. 12, 20

Rules of Appellate Procedure

Fed. R. App. P. 28(a)(4) .................................................................................................................. 1

Code of Federal Regulations

33 C.F.R. § 323.2 (2016) ........................................................................................................ 33, 34

33 C.F.R. § 328.3 (2016) .............................................................................................................. 30

viii

40 C.F.R. § 122.2 (2016) ....................................................................................................... passim

40 C.F.R. § 125.3 (2016) ............................................................................................ 13, 20, 21, 22

40 C.F.R. § 125.84 (2016) ............................................................................................................ 10

40 C.F.R. § 131.3 (2016) .............................................................................................................. 11

40 C.F.R. § 232.2 (2016) .............................................................................................................. 30

40 C.F.R. pt. 423 (2016) ................................................................................................................. 3

Federal Register

National Pollutant Discharge Elimination System; Revision of Regulations, 44 Fed. Reg. 32,858 (June 1, 1979) .......................................................................................... 31

Consolidated Permit Regulations: RCRA Hazardous Waste; SDWA Undergound Injection Control; CWA National Pollutant Discharge Elimination System; CWA Section 404 Dredge or Fill Programs; and CAA Prevention of Significant Deterioration, 45 Fed. Reg. 33,290 (May 19, 1980) .................................................................................. 26, 29

Consolidated Permit Regulations, 45 Fed. Reg. 48,620 (July 21, 1980) ................................................................................... 26, 28

Environmental Permit Regulations: RCRA Hazardous Waste; SDWA Underground Injection Control; CWA National Pollutant Discharge Elimination System; CWA Section 404 Dredge or Fill Programs; and CAA Prevention of Significant Deterioration, 48 Fed. Reg. 14,146 (Apr. 1, 1983) .................................................................................... 24, 26

Hydrogen Sulfide; Methyl Mercaptan; Toxic Chemicals Release Reporting; Community Right-to-Know; Stay of Reporting Requirements, 59 Fed. Reg. 43,048 (Aug. 22, 1994)........................................................................................ 14

Hazardous Waste Treatment, Storage, and Disposal Facilities and Hazardous Waste Generators; Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers, 60 Fed. Reg. 26,828 (May 19,1995) ......................................................................................... 14

2,2-Dibromo-3-nitrilopropionamide; Toxic Chemical Release Reporting; Community Right-to-Know; Stay of Reporting Requirements, 60 Fed. Reg. 54,949 (Oct. 27, 1995) ......................................................................................... 14

Stay of Effectiveness of Control Measure Regulating Dust Emissions at the Four Corners Power Plant; Navajo Nation, 73 Fed. Reg. 67,107 (Nov. 13, 2008)........................................................................................ 14

Clean Water Rule: Definition of "Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015) .................................................................................. 24, 26

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Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015). ........................................................................................ 17

Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 80 Fed. Reg. 67,838 (Nov. 3, 2015).............................................................................. 13, 18, 21

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) ................................................................................. passim

Postponement of Certain Compliance Dates for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 26,017 (June 6, 2017) .................................................................................... 16, 19

Other Authorities

43 Op. Att’y Gen. 197 (1979) ....................................................................................................... 24

Effective Date, Black’s Law Dictionary (10th ed. 2014) .............................................................. 17

H.R. Rep. No. 911, 92d Cong., 2d Sess. 126 (1972) .................................................................... 21

1

STATEMENT OF JURISDICTION

Pursuant to Fed. R. App. P. 28(a)(4), jurisdiction properly lies in this Court under 33

U.S.C. § 1369(b)(1)(F) (2012), which provides that the Environmental Protection Agency’s

(“EPA’s”) action issuing a permit under 33 U.S.C. § 1342 (2012) may be reviewed in the U.S.

Circuit Court of Appeals for the Federal judicial district in which any interested person seeking

review resides or transacts business. EnerProg, L.L.C. is a person under 33 U.S.C. § 1362(5)

(2012) and transacts business in Fossil, Progress. EnerProg timely filed its petition for review

under 33 U.S.C. § 1369(b) of the Environmental Appeals Board’s (“EAB’s”) final decision

affirming the issuance of its National Pollutant Discharge Elimination System (“NPDES”)

permit.

STATEMENT OF THE ISSUES

1. May EPA serve as the reviewing authority for Section 401 certifications from states which do not provide permittees any opportunity for review in state courts, and does a condition in such certification requiring ash pond closure have a proper statutory basis in Section 401(d)?

2. Must the future compliance deadline for achieving zero discharge of coal ash transport water

in EnerProg’s NPDES permit be suspended, as ordered by EPA’s April 25 Notice postponing the compliance dates of the 2015 ELGs pending judicial review?

3. Can a permit writer rely upon BPJ as an alternative ground for requiring zero discharge of

coal ash transport water if applicable ELGs are in place when the permit is issued? 4. May a court disrupt EPA’s decades-long practice of exempting waste treatment systems from

its definition of waters of the United States by requiring an NPDES permit for internal discharges into the MEGS ash pond?

5. Would closure and remediation of the MEGS ash pond constitute a discharge of fill material

into a water of the United States requiring a Section 404 permit?

STATEMENT OF THE CASE

Procedural History

On January 18, 2017, EnerProg received a final federal NPDES permit from EPA Region

XII, after preserving its claims by filing comments on the draft permit. R. at 6. EnerProg and an

2

environmental group, Fossil Creek Watchers, Inc. (“FCW”), each objected to certain provisions

contained in the permit. Both EnerProg and FCW subsequently appealed to EPA’s EAB. R. at 6.

The EAB issued an Order Denying Review. R. at 13. EnerProg and FCW then filed petitions for

review in this Court, which are consolidated in the present proceeding. R. at 2. On September 1,

2017, this Court requested briefing and argument on the issues presented above. R. at 2–4.

Statement of Facts

EnerProg operates the Moutard Electric Generating Station (“MEGS”), a coal-fired steam

electric power plant located in Fossil, Progress. R. at 6. With one unit rated at a maximum

dependable capacity of 745 megawatts, EnerProg’s facility has supplied electricity to the citizens

of Progress for decades. R. at 7. EnerProg holds an NPDES permit to operate the MEGS, which

withdraws water from the nearby Moutard Reservoir. R. at 7. To improve its environmental

impact, EnerProg operates several mitigation technologies, including a closed-cycle cooling

tower, a flue gas desulfurization (“FGD”) system, and a recently installed vapor-compression

evaporator to treat wastewater. R. at 7, 9.

In June, 1978, a coal ash pond was constructed by damming the upper reach of Fossil

Creek, a tributary to the navigable-in-fact Progress River. R. at 7. EnerProg uses the pond to treat

coal ash and FGD wastewater produced at the MEGS facility by sedimentation. R. at 7–8. It then

discharges the treated water into the Moutard Reservoir via a riser structure. R. at 7.

EnerProg applied for, and on January 18, 2017, received, a renewed federal NPDES

permit (“Final Permit”). R. at 6. EPA Region XII issued the permit after Progress certified the

project. R. at 6. However, the permit included several new provisions. First, the Final Permit

required EnerProg to close, remediate, and cap the MEGS ash pond, in compliance with

Progress’s Coal Ash Cleanup Act (“CACA”). R. at 8, 10. The CACA is a state law designed “to

prevent public hazards associated with the failures of” ash ponds, as well as leaks into ground

3

and surface waters. R. at 8–9. Unlike the federal Clean Water Act (“CWA”), the CACA requires

specific control measures, including “assessment, closure, and remediation” of ash ponds. R. at

8. The Final Permit requires EnerProg to “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,” R. at 10, and to build a new retention basin to

accept flows previously routed to the ash pond. R. at 8. The permit authorized internal discharges

to the ash pond without any effluent limitations until closure in 2018. R. at 10.

The Final Permit also included a new provision requiring zero discharge of fly and

bottom ash, pursuant to the 2015 revised Effluent Limitation Guidelines for the Steam Electric

Power Generating Point Source Category (“2015 ELGs”) based on best available technology

(“BAT”) for toxic discharges. R. at 9–10; see 40 C.F.R. pt. 423 (2016). The Final Permit

required achievement of the zero discharge condition by November 1, 2018, based on the

original compliance dates of the 2015 ELGs. R. at. 9. However, on April 25, 2017, EPA’s

Administrator postponed the 2015 ELG compliance dates pending judicial review of the ELGs in

the Fifth Circuit, after finding that justice required the postponement. 82 Fed. Reg. 19,005 (Apr.

25, 2017). The permit writer also determined that best professional judgment (“BPJ”) provides

an alternative basis for the finding that zero discharge of ash handling wastes by November 1,

2018 constitutes BAT for the coal ash transport discharges at the MEGS. R. at 9.

SUMMARY OF THE ARGUMENT

The Clean Water Act (“CWA”) is known as one of the United States’s most successful

environmental statutes. The hallmarks of the CWA are its flexible technology-based effluent

limitations and its scheme providing for cooperation between EPA, states, and regulated parties.

This case is about ensuring that the CWA is implemented in a way that allows for flexibility in

achieving effluent limitations, and that follows its procedures defining the roles of EPA, permit

4

writers, states, and regulated parties, so that the CWA may continue to function as an effective

tool for environmental protection and sustainable growth. Application of these fundamental

principles makes clear that the new requirements imposed in the Final Permit and proposed by

FCW are impermissible under the CWA.

First, EPA is required to review conditions of Progress’s state certification requiring

closure and remediation of the MEGS ash pond. Constitutional due process requires an avenue

for review, and Progress’s courts have not provided one. Additionally, as the permit-granting

agency, EPA has an independent obligation to ensure that Progress’s state certification meets the

requirements of Section 401 of the CWA.

The ash pond closure and remediation conditions do not meet these requirements because

they rigidly mandate a specific control technology. This runs contrary to the CWA’s fundamental

statutory scheme, which is predicated on giving sources flexibility to meet limitations specifying

maximum discharge allowances in the way best suited to their circumstances. Moreover, the

closure requirement is based on Progress’s CACA, which is aimed at broad environmental

concerns and not directly related to maintaining water quality. Thus, it is not an appropriate

condition of state law.

EPA’s postponement of the 2015 ELG compliance dates was a permissible exercise of

EPA’s discretion under Section 705 of the Administrative Procedure Act (“APA”), and it is

effective to postpone the Final Permit’s requirement for zero discharge of coal ash transport

waste. EPA satisfied Section 705’s minimal requirements for an administrative stay because it

determined that justice requires it to stay the compliance dates, and the 2015 ELGs are pending

litigation in the Fifth Circuit. Section 705 authorizes EPA to postpone compliance dates because

they are the dates when substantive requirements of the ELGs become enforceable.

5

EPA Region XII cannot rely on BPJ as an alternative ground for requiring zero discharge

of coal ash transport waste. BPJ is only available where EPA has not yet promulgated applicable

national standards, and the 2015 ELGs clearly qualify as applicable national standards.

Internal discharges into the MEGS ash pond are not subject to NPDES permitting

requirements because EPA suspended the provision in its definition of “waters of the United

States” that would include the ash pond over thirty-five years ago. Requiring EnerProg to obtain

an NPDES permit for these internal discharges would violate principles of equity by upsetting an

interpretation that EPA has consistently applied for decades and that has generated substantial

and widespread reliance interest among regulated industries.

If this Court does uphold the permit requirement that EnerProg close and remediate the

ash pond, this closure and remediation would not require a Section 404 permit for the discharge

of fill material. Closure would not convert the ash pond into a jurisdictional water, and neither

dewatering nor capping the pond would constitute an addition of fill material.

ARGUMENT

I. EPA MUST REVIEW PROGRESS’S STATE CERTIFICATION AND REJECT THE CONDITIONS REQUIRING ASH POND CLOSURE.

EAB unreasonably concluded that EPA cannot reject Section 401 certifications which

impose conditions beyond a state’s statutory authority under the CWA. EPA administers the

CWA. 33 U.S.C. § 1251(d) (2012). Therefore, its interpretations of the CWA are reviewed using

the standard given in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842–43 (1984). “Chevron directs courts to accept an agency’s reasonable resolution of an

ambiguity in a statute that the agency administers. Even under this deferential standard, however,

agencies must operate within the bounds of reasonable interpretation.” Michigan v. EPA, 135 S.

Ct. 2699, 2707 (2015) (quotations and citations omitted). EPA reasonably interpreted Section

6

401 as authorizing it to review conditions of state certifications, but applied its review authority

unreasonably. A rigid ash pond closure requirement cannot reasonably be considered an

“appropriate requirement of State law.” See 33 U.S.C. § 1341(d) (2012). This Court should

therefore vacate the condition as impermissibly included in EnerProg’s NPDES permit.

A. EPA must review Progress’s Section 401 certification.

1. Due process requires that EPA review Section 401 certifications where there are no available state procedures.

EPA must review Progress’s Section 401 certification conditions because there are no

alternative procedures available to EnerProg. As the Fourth Circuit has held, “due process

requires that the [EPA] Administrator grant a hearing” on the permissibility of the state’s Section

401 certification where there are “no available channels of State review, either administratively

or judicially.” Consolidation Coal Co. v. EPA, 537 F.2d 1236, 1239 (4th Cir. 1976).1 Here, due

process requires EPA to review Progress’s Section 401 certification because “Progress law does

not provide for review of such certifications in the state’s courts.” See R. at 11.

The Second Circuit’s reasoning in American Rivers v. FERC, 129 F.3d 99, 107 (2d Cir.

1997), upon which EAB relies for its conclusion that EPA “has no discretion to reject a

condition” in a Section 401 certification, see R. at 11, is inapplicable here. The American Rivers

court concluded that “a court of appropriate jurisdiction,” not the permit-granting federal agency,

1 The Seventh Circuit declined to follow Consolidation Coal in U.S. Steel Corp. v. Train, 556 F.2d 822, 836 (7th Cir. 1977) (abandoned on other grounds by City of W. Chi. v. U.S. Nuclear Regulatory Comm’n, 701 F.2d 632 (7th Cir. 1983)). There, the petitioner’s objection to a Section 401 certification was based on its allegation that the state water quality standards underlying the certification were invalid. Id. at 835–36. However, as the court noted, states must submit their water quality standards to EPA’s administrator, whose decision to approve or disapprove them is “reviewable in an action in the district court under the judicial review provisions of the APA.” Id. at 836. Thus, EPA review of the Section 401 certification was not the only avenue for review of the relevant action in U.S. Steel, which distinguishes that case from Consolidation Coal and from the present case. Indeed, the U.S. Steel court expressed appropriate skepticism that Consolidation Coal was in fact inconsistent with its decision. Id.

7

“has the authority to review the legality” of conditions contained in the certification. Am. Rivers,

129 F.3d at 108. Critically, though, American Rivers assumes that applicants will have

opportunities for review in “courts of appropriate jurisdiction.” Id. at 112. Where, as here, this

assumption does not hold, the Second Circuit’s approach would violate constitutional due

process. This case cannot fairly be decided on the basis of American Rivers. Accordingly, this

Court should hold that EPA must review Progress’s Section 401 certification.

2. EPA must review Section 401 certifications to ensure compliance with federal law.

Section 401 certifications unambiguously implicate questions of federal law and are

therefore subject to EPA review. The validity of a state’s Section 401 certification “is a question

of federal law,” which is an issue “properly put to [federal agencies].” Alcoa Power Generating

Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011); see also De. Riverkeeper Net. v. Sec’y Pa.

Dep’t of Envtl. Protection, 833 F.3d 360, 371 (3rd Cir. 2016) (Section 401 certifications are not

“purely . . . matter[s] of state law” because they are “required by federal law” and “cannot exist

without federal law.”). Section 401 is phrased as a prohibition on the issuance of permits by

federal agencies unless the agency has received a state certification. 33 U.S.C. § 1341(a) (“No

license or permit shall be granted until the certification required by this section has been

obtained . . . .”). So, a permitting agency “may not act based on any certification the state might

submit; rather, it has an obligation to determine that the specific certification ‘required by

[section 401] has been obtained,’ and without that certification, [the agency] lacks authority to

issue a license.” City of Tacoma v. FERC, 460 F.3d 53, 67–68 (D.C. Cir. 2006). In reviewing

state certifications, the federal agency need not “inquire into every nuance of the state law

proceeding,” but agencies have an obligation to “confirm that the state has facially satisfied the

express requirements of Section 401.” Id. at 68; see also Nat. Res. Def. Council v. U.S. EPA, 279

F.3d 1180, 1186 (9th Cir. 2002) (“EPA has its own independent obligation to determine whether

8

a permit will comply with the state's water quality standards.”). And, while states decide whether

or not to issue a certification for a given applicant, permitting agencies must ensure that states

satisfy other requirements of Section 401, such as notification and timing requirements under

Section 401(a)(3). Keating v. FERC, 927 F.2d 616, 624 (D.C. Cir. 1991).

Even if the American Rivers holding that agencies lack “the authority to decide which

conditions are within the confines of § 401(d) and which are not” could constitutionally be

applied in this case, this Court should decline to follow it because Section 401 certifications must

comply with federal law. Am. Rivers, 129 F.3d at 107. As EAB reads it, the holding in American

Rivers explicitly allows states to impose conditions contrary to law. The permitting agency is

then required to mechanically incorporate those unlawful conditions into federal permits without

review, in contravention of the agency’s obligation to ensure the permit’s compliance with

applicable federal laws. The court assumed, in the alternative, that a permitting agency could

wholly reject permits which contain unlawful state certifications, “signal[ing] to states and

licensees the limits of its tolerance.” Am. Rivers, 129 F.3d at 112. This naïve view of federal

steadfastness and state self-policing could effectively undermine the entire purpose of the

NPDES. But the more likely impact, as illustrated here, is that states will take advantage of

Section 401 certifications to improperly conscript the CWA’s federal enforcement mechanisms

for the purpose of implementing purely state laws. Rather than give states license to circumvent

federal law, this Court should follow the weight of judicial authority and require EPA to reject

unlawful state-imposed conditions.

B. The ash pond closure and remediation requirements are not “appropriate requirements of State law.”

Progress’s certification condition requiring ash pond closure and remediation are beyond

the scope of what states may require under Section 401, and therefore fail to satisfy federal law.

9

Although the Supreme Court has recognized that states have broad authority to impose

conditions on Section 401 certifications, “that authority is not unbounded.” PUD No. 1 of

Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 712 (1994).

Not all types of requirements are permissible—conditions must take the form of “effluent

limitations” or “other limitations.” See id. at 711 (noting that certifications may set forth “‘any

effluent limitations and other limitations . . . necessary to assure that any applicant’ will comply

with various provisions of the Act and appropriate state law requirements” (emphasis removed)

(quoting 33 U.S.C. § 1341(d))). Effluent limitations “restrict the quantities, rates, and

concentrations of specified substances which are discharged from point sources.” Arkansas v.

Oklahoma, 503 U.S. 91, 101 (1992); see also 33 U.S.C. § 1362(11) (defining “effluent

limitation” as “any restriction . . . on quantities, rates, and concentrations of chemical, physical,

biological, and other constituents which are discharged from point sources into navigable

waters”). Although effluent limitations are technology-based, they do not specify the control

technologies that permittees must adopt. Instead, they provide permittees with the flexibility to

meet maximum discharge allowances in the way best suited to their circumstances. This

fundamental feature of the CWA reduces compliance costs and creates incentives to develop

cost-effective methods of achieving effluent limitations, ultimately driving further reductions of

discharges.

Section 401’s provision for “other limitations” must be read in light of its context, which

includes the term “effluent limitations,” and a list of CWA provisions with which the other

limitations must assure compliance. 33 U.S.C. § 1341(d). None of these provisions contemplates

mandating a specific control technology. Indeed, even the applications of the CWA bearing the

least resemblance to traditional limitations of discharges have been expressed in terms of

10

limitations on the degree to which an activity may permissibly affect waters. For example,

conditions of Section 401 certifications have been applied to assure compliance with “state water

quality standards adopted pursuant to § 303,” which were translated into a minimum stream flow

requirement of between 100 and 200 cubic feet per second. PUD No. 1 of Jefferson Cty., 511

U.S. at 709, 713. EPA’s regulation of cooling water intake structures also does not mandate

particular control technologies. See 40 C.F.R. § 125.84 (2016) (setting forth specific criteria

relating to intake velocity, natural thermal stratification, and entrainment minimization rather

than requiring particular control technologies).

Progress’s state certification requires EnerProg to “cease operation of its ash pond,”

dewater the ash pond, and “cover the dewatered ash pond with an impermeable cap.” R. at 10.

These requirements mandate specific control technologies and strategies. They do not specify a

maximum discharge allowance or a maximum effect that EnerProg’s activities may have on

waters. They do not identify any pollutants of concern. They do not allow for flexibility in

achieving compliance. Therefore, they cannot be considered “effluent limitations” or “other

limitations” within the meaning of Section 401.

Section 401 also lists the provisions that Section 401 certifications may be used to certify

compliance with. These include various CWA provisions, as well as “appropriate conditions of

state law.” The list has also been interpreted to include state water quality standards by

incorporation. PUD No. 1 of Jefferson Cty., 511 U.S. at 713. The CACA is none of these. It is

clearly not a requirement of the CWA. It does not purport to be a state water quality standard,

nor has it been approved as a water quality standard by EPA, as required by Section 303 of the

CWA. 33 U.S.C. § 1313 (2012); see also 40 C.F.R. § 131.3(i) (2016) (explaining that water

11

quality standards shall consist of designated uses of waters and water quality criteria based on

those uses).

Nor is the CACA an “appropriate condition of state law.” The CWA does not define this

term. The Supreme Court has held that appropriate requirements of state law include “limitations

to assure compliance with state water quality standards,” but declined to “speculate on what

additional state laws, if any, might be incorporated by [the language of Section 401(d)].” PUD

No. 1 of Jefferson Cty., 511 U.S. at 713 (emphasis added). The EAB reads PUD No. 1 of

Jefferson County too broadly as permitting any condition that is not “completely unrelated to

surface water quality.” R. at 11. Indeed, courts have interpreted Section 401 more narrowly,

rejecting conditions that clearly had some relation to water quality. See, e.g., Atl. States Legal

Found., Inc. v. Eastman Kodak Co., 809 F. Supp. 1040, 1048 (W.D.N.Y. 1992) (certification

condition prohibiting discharge of any pollutant not listed in permit was impermissibly broad);

Niagara Mohawk Power Corp. v. N.Y. State Dep’t of Envtl. Conservation, 624 N.E.2d 146, 151

(N.Y. 1993) (state agencies are not empowered to include “broader environmental provisions of

[state] law or regulation” in Section 401 certifications); Commonwealth Power Co. v. Dep’t of

Nat. Res., Nos. 204399, 210844, 2000 WL 33521869, *2 (Mich. Ct. App. March 21, 2000)

(condition requiring applicant to conduct a fish study at proposed power plant site was invalid).

Section 401’s provision for appropriate conditions of state law must be read in light of the list of

CWA provisions in which it appears, as well as the overall statutory scheme of the CWA.

The CACA is primarily concerned not with water quality but with “preventing public

hazards associated with” coal ash treatment facilities, with only a secondary concern for ground

and surface waters. R. at 8–9. It bears little relationship to the CWA’s goals. It is not directed at

maintaining water quality standards or reducing effluent discharges. Moreover, the CACA is

12

fundamentally out of step with the CWA’s focus on effluent limitations, as discussed above.

Instead, the CACA is a “broader environmental provision” of state law which, if included in

Progress’s Section 401 certification, would require EnerProg to undertake projects beyond the

limits of Section 401(d). Niagara Mohawk Power Corp., 624 N.E.2d at 147.

The ash pond closure condition is not an effluent limitation or other limitation, and it

does not ensure compliance with the CWA or an appropriate state law requirement. Thus, it is

not permissible under Section 401 and may not be included in EnerProg’s NPDES permit.

II. EPA’S APRIL 25 NOTICE IS EFFECTIVE TO SUSPEND THE COMPLIANCE DEADLINES FOR ACHIEVING ZERO DISCHARGE OF COAL ASH TRANSPORT WASTE INCLUDED IN ENERPROG’S NPDES PERMIT.

EPA’s April 25 Notice postponing the 2015 ELG compliance deadlines

(“Postponement”) was a valid exercise of EPA’s broad equitable authority under Section 705 of

the APA. 5 U.S.C. § 705 (2012). Section 705 provides that “[w]hen an agency finds that justice

so requires, it may postpone the effective date of action taken by it, pending judicial review.” Id.

Administrative stays issued under Section 705 are reviewed by courts under the standard set

forth in Section 706 of the APA. Sierra Club v. Jackson, 833 F. Supp. 2d 11, 17–18 (D.D.C.

2012). This “highly deferential” standard “presumes agency action to be valid.” Id. (citations

omitted) Courts must reject agency action only if it is “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(2)(A), (C) (2012).

EPA satisfied both of Section 705’s requirements because it properly determined that

justice requires it to postpone certain future compliance dates of the 2015 ELGs, 82 Fed. Reg.

19,005, 19,005 (Apr. 25, 2017), and the ELGs are “pending judicial review.” See Sw. Elec.

Power. Co. v. EPA, 5th Cir. No. 15-60821 (5th Cir. Nov. 20, 2015). The Postponement suspends

the compliance deadline for the zero discharge requirement in EnerProg’s Final Permit. See 40

13

C.F.R. § 125.3(c)(1) (2016) (requiring technology-based treatment requirements in NPDES

permits to be based on currently effective ELGs).

A. EPA found that justice requires it to postpone the compliance dates.

EPA satisfied Section 705’s first requirement for an administrative stay by finding that

justice requires it to postpone the future compliance deadlines to avoid imposing hundreds of

millions of dollars in compliance costs, potentially for naught. This finding was reasonable

because EPA recognized that the 2015 ELGs may soon be struck down, repealed, or modified,

and determined that it would be unjust to require sources to make immense capital expenditures

in order to meet the compliance deadlines before the pending litigation and administrative

reconsideration conclude. 82 Fed. Reg. at 19,005 (citing 80 Fed. Reg. 67,838, 67,863–68 (Nov.

3, 2015) for explanation of ELGs’ hundreds of millions of dollars in annual compliance costs).

Section 705 grants EPA broad discretion to determine when justice requires it to

postpone an action, and the Postponement falls well within this authority. Agencies issuing

administrative stays are not required to apply the four-part preliminary injunction test

traditionally applied by courts issuing judicial stays under Section 705. The statutory text does

not specify any particular requirements that an agency must meet in making the determination of

whether justice requires a stay. 5 U.S.C. § 705. This broad grant of authority contrasts with

Section 705’s provision for judicial stays, which specifies in a separate sentence that courts must

issue them “to prevent irreparable injury.” Id. If Congress had intended to impose requirements

on administrative stays, it would have included language describing those requirements, as it did

for judicial stays. See Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005) (“We do

not lightly assume that Congress has omitted from its adopted text requirements that it

nonetheless intends to apply, and our reluctance is even greater when Congress has shown

elsewhere in the same statute that it knows how to make such a requirement manifest.”).

14

Agency practice and the weight of judicial authority confirm the text’s clear distinction

between the requirements for issuing judicial and administrative stays. EPA has routinely issued

stays under Section 705 without referencing the four preliminary injunction factors. See, e.g., 73

Fed. Reg. 67,107, 67,108 (Nov. 13, 2008); 60 Fed. Reg. 54,949, 54,952 (Oct. 27, 1995); 60 Fed.

Reg. 26,828, 26,828 (May 19,1995); 59 Fed. Reg. 43,048, 43,050 (Aug. 22, 1994). Courts

typically have not required agencies to apply the four-factor test, and have upheld administrative

stays where the agency did not apply the four-factor test. See Recording Indus. Ass’n of Am. v.

Copyright Royalty Tribunal, 662 F.2d 1, 14 (D.C. Cir. 1981); S. Shrimp All. v. United States, 33

C.I.T. 560 (2009).

EnerProg is aware of only one case, Sierra Club v. Jackson, where the court held that

agencies should be required to apply the judicial four-part test. 833 F. Supp. 2d at 30–31. The

Sierra Club court’s only affirmative justification for requiring EPA to apply the four-factor test

was a reference to a passage of legislative history that largely paraphrases the statutory text. Id.

at 31 (quoting Administrative Procedure Act, Pub. L.1944–46, S. Doc. No. 248 at 277 (1946)).

Even if there are “contrary indications in the statute's legislative history,” a court may “not resort

to legislative history to cloud a statutory text that is clear,” as it is in Section 705. Ratzlaf v.

United States, 510 U.S. 135, 147–8 (1994).

Furthermore, adopting the Sierra Club court’s requirement would violate the well-

established principle that courts should not impose procedural requirements on agencies beyond

those included in the APA. See, e.g., Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,

Inc., 435 U.S. 519, 525 (1978). Requiring agencies to apply the judge-made four-factor test

would unduly limit their administrative discretion to rely on important considerations that do not

relate to the merits of pending litigation. Thus, this Court should conclude that EPA acted within

15

its discretion when it reasonably determined that justice requires it to postpone the 2015 ELGs’

compliance dates.

B. The 2015 ELGs are pending judicial review.

The 2015 ELGs are clearly “pending judicial review” before the United States Court of

Appeals for the Fifth Circuit. Sw. Elec. Power. Co., No. 15-60821. The fact that EPA has also

granted reconsideration of the ELGs, see 82 Fed. Reg. at 19,005, is of no consequence for EPA’s

Section 705 authority. Section 705 does not prohibit agencies from considering other relevant

factors and circumstances in addition to the pending litigation. Reading such a prohibition into

Section 705 would thus contravene the statute’s text. It would also unduly restrict agencies’

ability to bring their discretion and expertise to bear on decisions about administrative stays.

There is a sufficient connection between the Postponement and the pending litigation, on

any standard that this Court may apply. In Sierra Club, the court held that an agency must

articulate “a rational connection between its stay and the underlying litigation.” 833 F. Supp. 2d

at 34. Although it is not at all clear that this “rational connection” requirement can be fairly read

into the APA’s broad text, EPA easily met it here by plainly and repeatedly referring to the

pending litigation among its reasons for issuing the Postponement. 82 Fed. Reg. at 19,005

(noting that “EPA received seven petitions for review of the Rule,” explaining that some of the

“wide-ranging and sweeping objections” to the 2015 ELGs raised in petitions for reconsideration

“overlap with the claims in the ongoing litigation,” and concluding that the Postponement will

“preserve the regulatory status quo . . . while the litigation is pending”). This is in stark contrast

to Sierra Club, where the agency referenced the pending litigation only “in passing” in a

transparent attempt to avoid the limitations of the Clean Air Act’s provision for an administrative

stay, and “ma[de] no effort to ground the stay on the existence or consequences of the pending

litigation.” 833 F. Supp. 2d at 33.

16

Also distinguishable is Becerra v. U.S. Dep’t. of Interior, 2017 U.S. Dist. LEXIS 150458,

at *25–26 (N.D. Cal. Aug. 30, 2017), where the court stated that the agency “improperly invoked

section 705 to suspend the effective date of the Rule pending its ultimate repeal rather than

pending judicial review,” and “blocked judicial review by obtaining a stay in the . . . litigation to

pursue the Repeal Rule instead.” Although judicial review of the 2015 ELGs is being held in

abeyance, EPA is conducting notice and comment rulemaking to stay the compliance dates until

it concludes its reconsideration. 82 Fed. Reg. 26,017 (June 6, 2017). This avoids the situation

that raised the Becerra court’s suspicion—it provides an alternative basis for staying the

compliance dates that does not “block” litigation while continuing to rely on the 705 stay

pending that litigation. Moreover, as the Becerra court ultimately concluded, invalidating the

Postponement would serve no purpose other than to unnecessarily whipsaw regulated parties,

since the notice and comment stay appears likely to take effect soon. Becerra, 2017 U.S. Dist.

LEXIS 150458, at *31–33 (declining to vacate a stay when repeal of the underlying rule would

be effective soon).

C. Section 705 authorizes EPA to postpone compliance dates that have not yet passed.

The EAB incorrectly stated that “section 705 of the APA does not authorize the extension

of compliance dates, only the effective date.” R. at 11–12. This conclusion relies on an overly

narrow interpretation of “effective date” and a misunderstanding of the action being postponed.

The actions being postponed are the ELGs’ substantive requirements, such as the zero transport

waste discharge requirement. These requirements are “part[s] of an agency rule,” making them

“agency actions” as defined in the APA. 5 U.S.C. § 551(13) (2012). The effective dates of these

actions are the dates they become enforceable—the compliance dates. Therefore, Section 705

does authorize EPA to postpone the compliance dates.

17

The APA does not define “effective date.” 5 U.S.C. § 551. Thus, the term must be given

its ordinary meaning. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012). Black’s

Law Dictionary defines “effective date” as “the date on which a statute, contract, insurance

policy, or other such instrument becomes enforceable or otherwise takes effect.” Effective Date,

Black’s Law Dictionary (10th ed. 2014) (emphasis added). Thus, where a provision is not yet

enforceable and does not yet have any practical effect, its effective date has not occurred. This is

true even where the provision is embedded within a broader rule that has an announced effective

date which has already passed. This is because different parts of a rule may become enforceable

and begin taking effect on different dates.

The APA defines an “agency action” to include “the whole or a part of” a rule. 5 U.S.C. §

551(13). Thus, a rule promulgated through a single instance of notice and comment rulemaking

may include multiple agency actions with different effective dates. This intuitive understanding

is exemplified in large rulemakings such as the Clean Power Plan, which applies many different

requirements to many parties at different times. 80 Fed. Reg. 64,662 (Oct. 23, 2015).

In its April 25 Notice, EPA postponed “the compliance dates that have not yet passed

contained in [the 2015 ELGs].” 82 Fed. Reg. at 19,006. These compliance dates are the

“effective dates” of multiple “agency actions” contained in the 2015 ELGs, and therefore fall

squarely within EPA’s stay authority under Section 705. As EPA correctly noted, the compliance

dates are effective dates because they are the earliest dates on which the requirements become

enforceable. 82 Fed. Reg. at 19,005. Of course, sources must begin preparing to comply before

the compliance dates, but sources may not be required to meet any standards until then. See 80

Fed. Reg. at 67,882 (“The permitting authority must make these final effluent limitations

applicable on or after November 1, 2018.”) (emphasis added).

18

January 4, 2016, the published “effective date” included in the Federal Register notice

announcing the 2015 ELGs, is not the effective date of the ELGs’ substantive requirements. 80

Fed. Reg. at 67,838. This is because the 2015 ELGs contained multiple “agency actions”

imposing different requirements on different types of sources, which become effective on

different dates. 82 Fed. Reg. at 19,005 (“The amendments addressed and contained limitations

and standards on various wastestreams at stem electric power plants . . . .”); id. (noting that

“[c]ollectively,” the various amendments are known as the ‘‘Effluent Limitations Guidelines and

Standards for the Steam Electric Power Generating Point Source Category’’). Although the

rule’s overall “effective date” for purposes of 5 U.S.C. § 553(d) (2012) (an unrelated APA

provision) was the date published in the Federal Register notice, the day that each limitation

contained in the ELGs takes effect and becomes enforceable is that limitation’s effective date for

purposes of Section 705. A more restrictive interpretation would undermine EPA’s equitable

discretion under Section 705 and “the very basic tenet of administrative law that agencies should

be free to fashion their own rules of procedure.” See Vt. Yankee Nuclear Power Corp., 435 U.S.

519 at 544. Therefore, EPA has authority to stay the compliance dates under Section 705.

D. EPA was not required to provide notice and comment before issuing the Postponement.

The EAB incorrectly stated that “[t]he administrator, without undergoing notice and

comment rulemaking, may not postpone the compliance dates of a rule that has already become

effective.” R. at 12. The APA’s procedural requirements for notice and comment rulemaking,

which appear in Section 553 and are not cross-referenced in Section 705, do not apply to stays

under Section 705 because these stays are not substantive rules but temporary measures to

preserve the status quo during litigation.

Only substantive “rules” are subject to the procedural requirements in Section 553.

5 U.S.C. § 553. As the court found in Sierra Club v. Jackson, a temporary stay under Section 705

19

“does not constitute substantive rulemaking” and is therefore not subject to notice and comment.

833 F. Supp. 2d 11 at 28. An indefinite postponement of a promulgated rule may qualify as a

“rule,” but only when its duration is not limited by pending litigation or any other definite period,

and where “the postponement has a substantial impact upon the public and upon the regulated

industry.” Nat. Res. Def. Council v. U.S. EPA, 683 F.2d 752, 766 (3d Cir. 1982); id. at 763 n.3.

EPA’s Postponement will last only for the duration of the pending litigation, 82 Fed. Reg.

at 19,005 (“This [postponement] will preserve the regulatory status quo . . . while the litigation is

pending and the reconsideration is underway.”), and will likely last much shorter than that, given

that EPA has commenced notice and comment rulemaking to issue a replacement stay. 82 Fed.

Reg. at 26,017. The April 25 Notice thus cannot plausibly be considered a “rule” subject to the

procedural requirements in 5 U.S.C. § 553.

The only authority that supports the EAB’s conclusion that notice and comment is

required is Safety-Kleen Corp. v. EPA. 1996 U.S. App. LEXIS 2324, *2–3 (D.C. Cir. Jan.

19,1996) (unpublished) (stating that Section 705 “does not permit the agency to suspend without

notice and comment a promulgated rule”). Safety-Kleen offers no explanation of its conclusion,

and no analysis or citations to support it. Id. This Court should decline to require notice and

comment on such a tenuous basis.

III. EPA MAY NOT RELY ON BEST PROFESSIONAL JUDGMENT AS AN ALTERNATIVE GROUND TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT WASTE.

The permit writer may not rely on BPJ as an alternative ground for the zero discharge

requirement because EPA has already promulgated uniform standards for discharges of coal ash

transport waste in the 2015 ELGs. Furthermore, the permit writer’s application of BPJ should be

invalidated as arbitrary and capricious. Applications of BPJ are reviewed under Section 706 of

the APA. Tex. Oil & Gas Ass’n v. U.S. EPA, 161 F.3d 923, 933 (5th Cir. 1998). Courts must

20

reject agency action if it is “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(2)(A), (C). An agency rule is arbitrary and capricious

if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

A. Permit writers may not rely on BPJ after EPA has promulgated applicable national effluent standards.

The Clean Water Act primarily regulates effluent discharges through uniform national

technology-based standards (such as the 2015 ELGs) set by EPA for each source category. These

standards are applied to individual sources by incorporation into their NPDES permits. Permit

writers may apply BPJ to develop source-specific permit requirements on a case-by-case basis,

but only when EPA has not yet promulgated applicable national standards. See 33 U.S.C. §

1342(a)(1); 40 C.F.R. § 125.3(c)(2) (technology-based requirements may be imposed “[o]n a

case-by-case basis under [33 U.S.C. § 1342(a)(1)], to the extent that EPA-promulgated

limitations are inapplicable”) (emphasis added). Courts have uniformly recognized that permit

writers may not apply BPJ where applicable effluent limitations exist. See, e.g., Riverkeeper, Inc.

v. U.S. EPA, 358 F.3d 174, 203 (2d Cir. 2004) (“It is, of course, true that once the EPA

promulgates applicable standards, regulation of those facilities subject to those standards on a

best professional judgment basis must cease . . . .”); Nat. Res. Def. Council v. U.S. EPA, 859 F.2d

156, 200 (D.C. Cir. 1988) (“Like the statutory language itself, [legislative history] tells us that

EPA is to issue permits containing BPJ limits only until national guidelines are in place.”); Nat.

Res. Def. Council v. U.S. EPA, 863 F.2d 1420, 1425 (9th Cir. 1988) (explaining that the CWA

21

authorizes EPA to issue permits based on BPJ “[i]n the absence of national standards”). The

purpose of this prohibition is to promote fairness and uniformity by ensuring that similar sources

will be subject to similar limitations:

[Sections 301 and 304] do indeed require adoption . . . of nationally uniform effluent limitations guidelines for industrial categories and classes of point sources. And, one congressional purpose in this respect was clear: the Article I branch sought to maximize horizontal equity, or, in the words of Senator Muskie, “to assure that similar point sources with similar characteristics . . . meet similar effluent limitations.”

Nat. Res. Def. Council, 859 F.2d at 200 (citations omitted). Indeed, BPJ is primarily a temporary

stopgap measure, intended only to “bridge the gap between promulgation of the Act and

adoption of effluent guidelines.” Id. (citing H.R. Rep. No. 911, 92d Cong., 2d Sess. 126 (1972).

Reliance on BPJ as an alternative ground for requiring zero discharge of coal ash

transport waste in EnerProg’s NPDES Permit undoubtedly exceeds EPA’s authority under 33

U.S.C. § 1342(a)(1) and 40 C.F.R. § 125.3(c)(2). The 2015 ELGs are national standards that

displace permit writers’ authority to use BPJ to regulate discharges to which they apply. 80 Fed.

Reg. at 67,882. As noted by the EAB, the ELGs clearly apply to the coal ash transport waste

regulated in EnerProg’s NPDES permit because the zero discharge requirement for bottom ash

and fly ash is an element of the 2015 ELGs. R. at 11; see also 80 Fed. Reg. at 67,852. Thus, EPA

is prohibited from using BPJ as an alternative basis for the zero discharge requirement.

BPJ did not become permissible when EPA temporarily postponed the compliance dates

for the 2015 ELGs after issuing the Final Permit. The August 25 Notice has not rescinded the

2015 ELGs—it merely postponed their compliance dates.2 This has no effect on the fact that the

ELGs preclude permit writers from using BPJ to regulate coal ash transport waste. Even if the

2 See supra, Section II.D, explaining that 705 stays are not substantive rules or repeals of rules.

22

2015 ELGs are eventually invalidated or repealed, they were in effect when the Final Permit was

issued, which makes BPJ impermissible. The CWA provides for BPJ only as a temporary

stopgap until national standards are initially promulgated. The promulgation of applicable ELGs

thus permanently displaces authority to use BPJ, even if the ELGs are later repealed. As

explicitly stated in Section 402, BPJ may be used “prior to the taking of necessary implementing

actions.” 33 U.S.C. § 1342(a)(1)(B) (emphasis added). Thus, on a plain reading of the statutory

text, an application of BPJ must occur before promulgation of an ELG to be valid.

B. The permit writer’s use of BPJ as a basis for the zero discharge requirement was arbitrary and capricious.

Even assuming, arguendo, that EPA has authority to apply BPJ to EnerProg’s NPDES

permit, the use of BPJ as an alternative ground for the zero discharge requirement was arbitrary

and capricious because the permit writer failed to consider several important factors. An agency

action is arbitrary and capricious if the agency has “entirely failed to consider an important

aspect of the problem.” State Farm Mut. Automobile Ins. Co., 463 U.S. at 43. EPA’s regulations

state that in applying BPJ to determine BAT for a facility, the permit writer “must” consider

several factors, including “[t]he cost of achieving such effluent reduction” and “[n]on-water

quality environmental impact (including energy requirements).” 40 C.F.R. § 125.3(d).

First, there is no record evidence that the permit writer considered non-water quality

environmental impact that the zero discharge requirement may have on EnerProg’s ability to

effectively operate the FGD system, which it uses to comply with Clean Air Act Requirements.

R. at 9. Second, and more importantly, it was impossible for the permit writer to consider the

“important aspects” of the problem of regulating coal ash transport waste identified in EPA’s

April 25 Notice, because it was issued after the Final Permit. R. at 11. The April 25 Notice

identifies new factual, legal, and policy considerations that are clearly “important aspect[s] of the

23

problem” because they have caused EPA to seriously reconsider the 2015 ELGs on a nationwide

basis. These considerations include “new data, claiming that plants burning subbituminous and

bituminous coal cannot comply with the Rule’s limitations and standards for FGD wastewater

through use of EPA’s model technology,” a pilot study that supports petitions for reconsideration

of the ELGs received by EPA, and the legal issues that have been raised in the pending litigation

over the 2015 ELGs and that underlie the petitions for reconsideration. 82 Fed. Reg. at 19,005.

Therefore, use of BPJ to justify the zero discharge requirement is beyond EPA’s authority

and arbitrary and capricious. This Court should reverse the EAB’s decision on this issue.

IV. INTERNAL DISCHARGES INTO THE MEGS ASH POND DO NOT REQUIRE AN NPDES PERMIT.

The CWA’s permit requirement applies only to discharges of pollutants into “navigable

waters,” which are further defined as “the waters of the United States.” See 33 U.S.C. §§

1311(a), 1362(7), 1362(12) (2012). Pursuant to its authority to “prescribe such regulations as are

necessary to carry out the functions under this Act,” 33 U.S.C. § 1361 (2012)(a), EPA has issued

regulations defining “waters of the United States” subject to the NPDES permit requirement. 40

C.F.R. § 122.2 (2016). This definition includes “[a]ll impoundments of waters otherwise

identified as waters of the United States,” but expressly exempts “[w]aste treatment systems,

including ponds or lagoons designed to meet the requirements of the Clean Water Act” that

“resulted from the impoundment of waters of the United States.” Id. The MEGS ash pond is a

waste treatment system that falls squarely within this exemption.

FCW claims that a permit is required based only on a statement in EPA’s regulation

defining “waters of the United States” that has not been in effect in over thirty-five years. R. at

12. This statement would provide that the exemption for waste treatment systems does not apply

to manmade bodies of water which “resulted from the impoundment of waters of the United

24

States.” 40 C.F.R § 122.2. However, as stated in EPA’s Note to the definition, the statement

relied upon by FCW was indefinitely suspended on July 21, 1980. Id. This indefinite suspension

(“1980 Stay”) has been reincorporated in two subsequent reconsiderations of the definitions

section. 48 Fed. Reg. 14,146, 14,153 (Apr. 1, 1983); 80 Fed. Reg. 37,054, 37,114 (June 29,

2015). One of these reconsiderations involved extensive review and hundreds of thousands of

public comments. 80 Fed. Reg. at 37,114. Through its continuous application and enforcement

over many years, the 1980 Stay has come to represent the “longstanding policy judgment of

successive EPA administrations.” R. at 12. This Court should give effect to this longstanding

judgment by holding that discharges into the MEGS ash pond do not require NPDES permits.

A. EPA had statutory authority to issue the 1980 Stay under the CWA.

FCW argues that the 1980 Stay is ineffective because it lacked statutory authorization. R.

at 12. This claim is without merit. Promulgating and interpreting regulations that define the

scope of EPA’s jurisdiction under the CWA clearly fall within EPA’s broad authority to

“administer this Act,” 33 U.S.C. § 1251(d), and “prescribe such regulations as are necessary to

carry out the functions under this chapter.” 33 U.S.C. § 1361(a). The Civiletti Memorandum, an

influential opinion issued by Attorney General Benjamen Civiletti in the early years following

the CWA’s passage, concluded that the CWA gives EPA’s Administrator “final administrative

responsibility for construing the term ‘navigable waters.’” 43 Op. Att’y Gen. 197 (1979).

EnerProg is aware of no caselaw questioning EPA’s well-established authority to promulgate and

interpret regulations defining “waters of the United States.” The 1980 Stay plainly falls within

this authority. FCW’s first claim therefore fails.

B. This Court should not vacate EPA’s long-established 1980 Stay based on procedural flaws.

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This Court should decline to require an NPDES permit for internal discharges to the ash

pond on the basis of FCW’s procedural challenge to the 1980 Stay under Section 553 of the

APA. It is true that the 1980 Stay was not promulgated through notice and comment rulemaking,

which the APA requires for substantive rules. 5 U.S.C. § 553. It is also true that an indefinite

stay may be an effective repeal subject to Section 553’s requirements. Nat. Res. Def. Council,

683 F.2d at 766. However, vacating the 1980 Stay as it applies to EnerProg’s NPDES permit is

not an appropriate remedy in this case. Setting aside the Stay would upset decades of settled

interpretation and agency practice, potentially subjecting numerous sources to unexpected and

significant regulations. It could also undermine the CWA’s interest in uniform regulation by

subjecting EnerProg to regulations that are more stringent than those EPA has applied to

similarly situated sources for decades.

Although vacatur is the standard remedy for regulations violating the APA, “when equity

demands, the regulation can be left in place while the agency follows the necessary procedures.”

Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995); see also Nat. Res. Def.

Council v. U.S. EPA, 808 F.3d 556, 584 (2d Cir. 2015); Cent. Me. Power Co. v. FERC, 252 F.3d

34, 48 (1st Cir. 2001); Cent. & S.W. Servs. v. U.S. EPA, 220 F.3d 683, 692 (5th Cir. 2000);

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150 (D.C. Cir. 1993) (“An

inadequately supported rule, however, need not necessarily be vacated.”). In deciding whether to

vacate, courts must balance the seriousness of the regulation’s deficiencies against the disruptive

consequences of vacatur. See Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 197 (D.C.

Cir. 2009).

Procedural deficiencies are generally less serious than actions whose substance is

arbitrary or unlawful. See Int’l Union, United Mine Workers, v. Fed. Mine Safety & Health

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Admin., 920 F.2d 960, 966 (D.C. Cir. 1990) (“We have commonly remanded without vacating an

agency’s rule or order where the failure lay in lack of reasoned decisionmaking . . . .”). This is

especially so when “there is at least a serious possibility that the [agency] will be able to

substantiate its decision given an opportunity to do so.” Cent. & S. W. Servs., 220 F.3d at 692

(internal quotations and citations omitted). On the other side of the balance, courts have

recognized that a threatened disruption to “the public interest in assuring [electrical] power”

caused by vacatur can be “decisive.” Cent. Me. Power Co., 252 F.3d at 48.

Here, the procedural deficiency of failing to conduct notice and comment is ameliorated

by several factors. First, the 1980 Stay was immediately preceded by the notice and comment

rulemaking that culminated in EPA’s promulgation of its definitions section. 45 Fed. Reg.

33,290 (May 19, 1980). This establishes that EPA had carefully considered its definition of

“waters of the United States” before issuing the 1980 Stay. Second, the1980 Stay sufficiently

explained its reasoning. 45 Fed. Reg. 48,620 (July 21, 1980). EPA explained that its purpose in

including the sentence that it later stayed “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.” Id. Following petitions for review objecting that

the sentence would require sources “to obtain permits for discharges into existing waste

treatment systems, such as power plant ash ponds, which had been in existence for many years,”

EPA conceded that “the regulation should be carefully re-examined and that it may be overly

broad.” Id. Third, EPA has reincorporated the 1980 Stay in two subsequent reconsiderations of

40 C.F.R. § 122.2, one of which involved extensive review and hundreds of thousands of public

comments. 80 Fed. Reg. at 37,114; 48 Fed. Reg. at 14,153. These subsequent reconsiderations of

the definitions section have provided EPA with additional opportunities to consider the 1980

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Stay and determine whether it should be revisited. These ameliorating factors suggest that EPA

would be able to remedy any procedural deficiencies on remand by conducting notice and

comment rulemaking to develop an adequate record and properly codify the 1980 Stay.

On the other side of the balance, vacatur would have widespread and serious disruptive

consequences for regulated industry, EPA, and state regulatory bodies. EPA and the states have

administered the NPDES program on the assumption of the 1980 Stay’s validity for decades.

Vacating the Stay could unexpectedly impose new requirements on power plants and other

sources operating waste treatment systems nationwide, without giving these sources an

opportunity to comment on this radical change to the regulatory landscape. Nothing suggests that

this widespread disruption would be accompanied by any meaningful environmental benefits—if

anything, it would inhibit sources’ ability to treat the waste they generate. Indeed, FCW has not

identified any appropriate effluent limitations that it would apply to discharges into the MEGS

ash pond. Presumably, this is because such limitations would serve no meaningful environmental

purpose. The disruption that vacatur would cause far outweighs the seriousness of the 1980

Stay’s procedural flaws. Therefore, equity requires that this court apply the 1980 Stay to the

MEGS ash pond.

C. The 1980 Stay clarifies that EPA intended to exempt waste treatment systems constructed before the definition of “waters of the United States” was promulgated.

Even if this Court holds that the 1980 Stay does not apply to EnerProg’s NPDES permit

with the force of law, it should defer to EPA’s interpretation of the definition of “waters of the

United States” embodied in the 1980 Stay. Courts must defer to an agency’s interpretation of its

own regulations unless that interpretation is “plainly erroneous or inconsistent with the

regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quotations omitted). A court “need look

no further” than whether an agency’s interpretation is consistent with the regulatory text. Chase

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Bank USA, N.A. v. McCoy, 562 U.S. 195, 208 (2011). However, if an interpretation represents a

“post hoc rationalization taken as a litigation position,” courts will not defer to the agency’s

interpretation. Id. at 210 (quotations omitted). Nor will courts grant Auer deference if doing so

would “seriously undermine the principle that agencies should provide regulated parties ‘fair

warning of the conduct [that a regulation] prohibits or requires.’” Christopher v. SmithKline

Beecham Corp., 567 U.S. 142, 156 (2012) (quoting Gates & Fox Co. v. Occupational Safety and

Health Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986) (Scalia, J.)). But Auer deference is

especially appropriate where an agency’s interpretation has been consistent over time. Decker v.

Nw. Env. Def. Center, 568 U.S. 597, 614 (2013) (according Auer deference to EPA’s

longstanding view that stormwater runoff from logging roads does not require NPDES permits).

The last sentence of the exemption in 40 C.F.R. § 122.2 does not specify whether it

prevents the exemption from applying to waste treatment systems that existed at the time the

regulations were enacted, but that originally resulted from the impoundment of waters of the

United States.3 Although the sentence’s use of the past tense suggests that it applies to pre-

existing waste treatment systems, the preamble to the 1980 Stay suggests that the sentence was

only ever intended to apply prospectively from the time of the definition’s enactment. 45 Fed.

Reg. at 48,620 (conceding that the sentence “may be overly broad,” based on objections that it

would require sources “to obtain permits for discharges into existing waste treatment systems,

such as power plant ash ponds, which had been in existence for many years”). Thus, even if it

lacks the force of law, the 1980 Stay represents the clarifying interpretation that waste systems

which existed prior to 1980 are exempt from the definition of “waters of the United States.” Such

3 The sentence reads in full: “This exclusion applies 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.” 40 C.F.R. § 122.2.

29

interpretations are not subject to Section 553’s notice and comment requirements. 5 U.S.C. §

553(b)(A); Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203–04 (2015).

As discussed above, the interpretation represented by the 1980 Stay has long been held

by EPA, and has been reaffirmed by and two reconsiderations of the definitions section. This

longstanding agency interpretation is not “plainly erroneous” and should accordingly receive

Auer deference. This is especially so because the alternative interpretation would deny regulated

parties “fair warning of the conduct [that the regulation] prohibits or requires,” SmithKline

Beecham Corp., 567 U.S. at 142 (internal quotations and citation omitted), by suddenly

subjecting a large number of sources to regulations based on an interpretation that contradicts the

last thirty-seven years of EPA practice.

The MEGS ash pond was created in 1978, prior to the promulgation of EPA’s definition

of “waters of the United States” in 1980. R. at 7; 45 Fed. Reg. at 33,290. Therefore, the ash pond

is not a “water of the United States” on EPA’s reasonable interpretation, and discharges into it do

not require an NPDES permit.

V. THE CLOSURE AND CAPPING OF THE MEGS ASH POND DOES NOT REQUIRE A SECTION 404 PERMIT FOR THE DISCHARGE OF FILL MATERIAL.

EnerProg notes at the outset that the condition requiring closure of the MEGS coal ash

pond was inappropriately included in EnerProg’s NPDES permit. Supra, Section I. Even if the

condition were appropriate, though, it would not require a Section 404 permit because closure

would not result in the discharge of fill material into a water of the United States. A Section 404

permit is required “for the discharge of dredged or fill material into the navigable waters at

specified disposal sites.” 33 U.S.C. § 1344(a) (2012). The MEGS ash pond is not a navigable

water, and coal ash and the impermeable cap are neither discharged nor fill materials. This

determination involves questions of statutory and regulatory interpretation, and therefore EPA’s

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interpretations are reviewed according to the standards in Chevron and Auer, respectively. See

Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 193 (4th Cir. 2009).

A. Closing the ash pond does not cause it to become a water of the United States.

It has already been established that the MEGS coal ash pond currently does not qualify as

a jurisdictional water, pursuant to the exemption for waste treatment systems in 40 C.F.R. §

122.2. Indeed, the Army Corps of Engineers, the agency that issues Section 404 permits,

includes the waste treatment system exemption in its duly promulgated definition of “waters of

the United States.” However, it does not include the sentence in 40 C.F.R. 122.2 that purports to

make that exception inapplicable to waste treatment systems constructed in preexisting waters.

See 33 C.F.R. § 328.3(b)(1) (2016); 40 C.F.R. § 232.2 (2016). FCW argues, however, that

closure of the pond will convert it into a jurisdictional water because it will cease to be a waste

treatment system subject to the exemption. Nothing in the CWA or in EPA’s regulations

implementing it supports this contention, and this Court should defer to EPA’s reasonable

interpretation that closure and capping of the ash pond would not render it a water of the United

States requiring a Section 404 permit.

Under both the EPA and Army Corps regulations, waste treatment systems are “not

‘waters of the United States,’” even if they otherwise meet the definition. Because the term

“waste treatment systems” is not defined in the EPA or Army Corps regulations, this Court must

defer to EPA’s interpretation unless it is plainly erroneous. See Ohio Valley Envtl. Coal., 556 at

212–13. The waste treatment system exception “was intended to exempt . . . waters that are

incorporated in an NPDES permit as part of a treatment system.” N. Cal. River Watch v. City of

Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007) (citing 44 Fed. Reg. 32,858 (June 1, 1979)).

EnerProg’s NPDES permit explicitly incorporates the ash pond and permits discharges

into it from Internal Outfalls 008 and 009. R. at 8, 10. Even after closure, the ash pond would

31

remain incorporated into EnerProg’s NPDES permit and would continue to form part of

EnerProg’s system for treating and handling waste. This system consists of a coordinated set of

facilities and technologies, and the ash pond would continue to play the role of securely storing

bottom ash, fly ash, and FGD waste as part of this system even if it were closed. Moreover, the

zero coal ash transport water discharge and pond closure requirements that are currently included

in EnerProg’s NPDES permit contemplate dry storage as a waste treatment strategy. If this Court

upholds these requirements, use of the ash pond would clearly qualify as a waste treatment

system designed to comply with the Clean Water Act. The ash pond properly falls within the

exemption and does not require a Section 404 permit.

Furthermore, even if the ash pond ceased being actively used as a treatment facility, it

would not become a water of the United States. As the EAB correctly noted, the “exemption for

waste treatment systems does not contain any recapture provision” that would convert the ash

pond into waters of the United States upon closure. R. at 13. The recapture provision in Section

404(f)(2) applies to certain otherwise exempt discharges of dredged or fill material into

jurisdictional waters, when the waters are put to a different use than they previously had been. 33

U.S.C. § 1344(f)(2). By its terms, this recapture provision does not convert nonjurisdictional

areas (such as the ash pond) into jurisdictional waters. Since the ash pond is subject to the waste

treatment system exemption in the definition of waters of the United States, it was never a

jurisdictional water. Therefore, the recapture provision, which imposes permit requirements on

activities that already qualify as discharges into jurisdictional waters but that were previously

exempt, cannot apply to the ash pond. The fact that an explicit recapture provision exists, and

that it does not apply to the ash pond, counsels against reading an additional implied recapture

provision into the text of the waste treatment system exemption. Cf. Russello v. United States,

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464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”) (alteration in original)

(quotations and citations omitted). Policy considerations support this interpretation. If the closure

of waste treatment systems required a 404 permit, sources would have an incentive to continue

dumping waste into existing ash ponds to maintain their exempt status, rather than take measures

to reduce or eliminate discharges and close their waste treatment systems. Accordingly, this

Court should hold that closing and remediating the ash pond would not make it require a Section

404 permit.

B. Dewatering and capping are not discharges.

Section 404(a) requires a permit for any discharge of fill material. See, e.g., Abenaki

Nation of Mississquoi v. Hughes, 805 F. Supp. 234, 248 (D. Vt. 1992). A discharge is “any

addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)

(emphasis added); see also id. § 1362(16). And pollutants are materials such as sewage, chemical

wastes, and heat, among other things. Id. § 1362(6). An activity is not a discharge if it does not

result in the addition of a pollutant. See Am. Mining Cong. v. U.S. Army Corps of Eng’rs, 951 F.

Supp. 267, 275 (D.D.C. 1997) (holding that incidental fallback from dredging activity back into

the area from which it was taken does not add pollutants).

The presence of coal ash does not constitute a discharge into the pond because there

would not be “any addition” of fill material. See 33 U.S.C. § 1362 (12). Upon closure, the

NPDES permit requires that the ash pond would cease to be used, after which no further coal ash

would be placed in the pond. R. at 10. The requirement to dewater the pond would involve the

removal of water, not the addition of fill material. R. at 10. And the impermeable cap does not

constitute a pollutant. See 33 U.S.C. § 1362(6).

33

C. The coal ash and impermeable cap are not fill materials.

Even if the closed ash pond were somehow converted into a water of the United States,

the coal ash and impermeable cap could not be defined as fill materials. EPA uses an effects-

based test to identify fill material. See 33 C.F.R. § 323.2 (2016)(e)(1). Thus, “material placed in

waters of the United States” is fill material if it has the effect of either replacing any water of the

United States with dry land or changing the bottom elevation of any amount of a water of the

United States. 33 C.F.R. § 323.2(e)(1)(i)–(ii); see also id. § 323.2(e)(2) (listing examples of fill

materials such as “rock, sand, soil, clay, plastics, construction debris, [and] wood chips”); Coeur

Alaska Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 268 (2009).

Fill materials which meet the effects-based test require Section 404 permits, but no

permit is required if an activity does not have the effects described in 33 C.F.R. § 323.2(e)(1)(i)–

(ii). Activities such as filling in sloughs which contained rainwater have been properly construed

as discharging fill material because “the activities were changing the bottom elevation of the

waterbody” and “were designed to replace the aquatic area with dry land.” Avoyelles

Sportsmen’s League v. Marsh, 715 F.2d 897, 924–25 (5th Cir. 1983) (quotations omitted).

Conversely, passively allowing a site to revert to its original form does not involve placing fill

materials into waters and does not require a Section 404 permit. Abenaki Nation of Mississquoi,

805 F. Supp. at 248 (holding Section 404 permit was not required for mitigation measure which

was likely to result in the natural conversion of land from farmland to wetlands). Without a

permit, a continued presence of fill material in a water of the United States is a violation of the

CWA. Sasser v. Admin’r, U.S. EPA, 990 F.2d 127, 129 (4th Cir. 1993).

The coal ash and impermeable cap do not replace the pond with dry land. Instead, water

would be taken out of the pond and no further matter would be added. Cf. 33 U.S.C. § 1362(12)

(discharge requires an addition of a pollutant). Nor do the coal ash and impermeable cap change

34

the pond’s bottom elevation. Coal ash which was permissibly discharged into a waste treatment

system cannot become post hoc fill material which then suddenly has the effect of changing the

pond’s bottom elevation long after it was placed in the pond. The continued presence of this coal

ash would not violate the CWA because it was discharged under an NPDES permit. Cf. Sasser,

990 F.2d at 129 (fill material discharged without permit violated CWA). And the impermeable

cap would only be placed in the empty pond in 2020, once dewatering had been completed a year

previously in 2019. R. at 10. An impermeable cap placed upon the ground where water once

stood does not change the bottom elevation of water.

Neither the coal ash nor the impermeable cap at issue here satisfy the effects-based test

for fill material laid out in 33 C.F.R. § 323.2(e)(1)(i)–(ii). The closure and capping of the ash

pond, therefore, would not require a Section 404 permit.

CONCLUSION

For the above-stated reasons, EnerProg respectfully requests that this Court reverse the

EAB’s decision upholding the ash pond closure and remediation condition included in

EnerProg’s NPDES permit, and vacate the condition as lacking authority under 33 U.S.C. §

1341(d). EnerProg also requests that this Court apply EPA’s April 25 Notice to EnerProg’s

NPDES permit and suspend the compliance deadlines for the permit’s requirement that EnerProg

achieve zero discharge of coal ash transport waste. EnerProg further requests that this Court

reverse the EAB’s decision that Best Professional Judgment provides an alternative basis for this

requirement. Finally, EnerProg requests that this Court affirm the EAB’s dismissal of FCW’s

petitions to require an NPDES permit for internal discharges into the ash pond and a Section 404

permit in the event that the ash pond is closed, remediated, and covered.

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Respectfully submitted,

Team 53 Counsel for EnerProg, L.L.C.