in the united states court of appeals for the … 15... · louisville gas and elec. co. v. ky....
TRANSCRIPT
1
Team # 15
IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT
Docket Nos. 17-000123 and 17-000124
ENERPROG, L.L.C.,
Petitioner,
and
FOSSIL CREEK WATCHERS, INC., Petitioner,
V.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
On Appeal from the Environmental Appeals Board
BRIEF OF PETITIONER-APPELLANT,
Fossil Creek Watchers, Inc.
ORAL ARGUMENT REQUESTED
2
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ 2
TABLE OF AUTHORITIES .......................................................................................................... 4
STATEMENT OF JURISDICTION ............................................................................................ 10
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.............................................. 10
STATEMENT OF THE CASE ..................................................................................................... 10
STANDARD OF REVIEW ........................................................................................................... 12
SUMMARY OF THE ARGUMENT ........................................................................................... 13 ARGUMENT………………………………….....………………………………………………..15
I. THE FINAL NPDES PERMIT PROPERLY INCLUDED CONDITIONS REQUIRING
CLOSURE AND REMEDIATION OF THE COAL ASH POND AS PROVIDED BY THE
STATE OF PROGRESS IN THE CWA SECTION 401 CERTIFICATION. ....................... 15 A. EPA Was Required to Include all Progress Certification Conditions Without Regard to Their Consistency with CWA Section 401(d). .......................................................................... 16 B. Assuming the Question of Consistency is Open to EPA and to the Environmental Appeals Board, the Ash Pond Closure and Remediation Conditions Constitute “Appropriate Requirements of State Law” as Required by CWA Section 401(d). ......................................... 20
II. EPA’S NOTICE OF POSTPONEMENT OF COMPLIANCE DEADLINES FOR THE
2015 ELGS IS NOT EFFECTIVE TO SUSPEND PERMIT COMPLIANCE DEADLINES, AND VIOLATES THE ADMINISTRATIVE PROCEDURES ACT. ................................... 22
A. The EPA was Required to Comply with APA Notice and Comment Requirements in Postponing the Compliance Dates of the Rule. ........................................................................ 22 B. EPA’s Misuse of APA § 705 Renders the Postponement Notice Ineffective to Postpone the Rule’s Compliance Dates. ........................................................................................................ 23 C. EPA’s Postponement Notice is Not Effective to Require the Suspension of the Permit Compliance Deadlines. ............................................................................................................. 24 D. EPA’s Attempt to Postpone the Compliance Deadlines Under § 705 of the APA Violates the Administrative Procedure Act............................................................................................. 26
III. EPA REGION XII COULD RELY ON BEST PROFESSIONAL JUDGMENT AS AN
ALTERNATIVE GROUND FOR REQUIRING ZERO DISCHARGE OF COAL ASH
TRANSPORT WASTES. ........................................................................................................... 27 A. EPA May Exercise BPJ to Implement Existing Regulations. ............................................ 27 B. Alternatively, EPA’s Reconsideration of the 2015 ELGs Requires the Use of BPJ in Imposing NPDES Permit Conditions and That Interpretation is Entitled to Chevron Deference. ................................................................................................................................. 29
1. Section 402(a)(1) of the CWA is Ambiguous……………………………………30 2. EPA Region XXII's Interpretation of § 402 Was Resonable……………..……..31
3
IV. .... SECTION 402 NPDES PERMIT IS REQUIRED FOR POLLUTANT DISCHARGES
FROM OUTFALL 008 INTO THE COAL ASH POND. ........................................................ 33 A. MEGS Coal Ash Pond is a Water of the US under the Significant Nexus Test. ................ 33 B. EnerProg Directly Discharges Pollutants into the Water of the US from Outfall 008. .... 35 C. The Waste Treatment Exception Should Not be Given Chevron Deference. ..................... 37
1. The Waste Treatment Exclusion Fails Under Chevron's Two Prong Test…..…38 2. The Waste Treatment Exception Violates the APA Notice-and-Comment Provisions……………………………………………………..…………………..39
V. EVEN IF WASTE TREATMENT EXCLUSION APPLIES, ENERPROG MUST
OBTAIN SECTION 404 PERMIT PRIOR TO ASH POND CLOSURE & CAPPING. ...... 40 A. The Coal Ash Involved in the Closure and Capping Constitutes a Fill Material. ............. 40 B. EnerProg Failed to Establish Any Affirmative Defenses for Unauthorized Filling. ......... 41 C. EnerProg’s Ash Pond Closure and Capping Violates CWA Because There Has Been No Impact and Mitigation Analysis. ............................................................................................... 42
CONCLUSION .............................................................................................................................. 43
4
TABLE OF AUTHORITIES U.S. Supreme Court Cases
Chevron, USA v. NRDC, 467 US 837 (1984)................................................................13, 14, 15, 29, 30, 33, 37, 38, 39
Christensen v. Harris Cty., 529 U.S. 576 (2000)..............................................................................................................29 Marsh v. Or. NRDC, 490 U.S. 360 (1989)..............................................................................................................13 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)................................................................................................................27 P.U.D. No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994)............................................................................................16, 17, 20, 21 Rapanos v. U.S.,
547 U.S. 715 (2006) (Kennedy, J., concurring in judgment)..........................................33, 34 S. Fla. Water Mgmt. Dist. v. Miccuskee Tribe of Indians,
541 U.S. 95 (2005)................................................................................................................36 SWANCC v. US Army Corps of Engineers,
431 U.S. 159 (2001)........................................................................................................34, 35 U.S. v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985)..............................................................................................................34
U.S. Courts of Appeals Cases
Ackels v. U.S. E.P.A., 7 F.3d 862 (9th Cir. 1993)........................................................................................17, 18, 19 Am. Rivers, Inc. v. F.E.R.C.,
129 F.3d 99 (2nd Cir. 1997)......................................................................................16, 18, 19
Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001).................................................................................................29 Consol. Coal Co., Inc. v. E.P.A., 537 F.2d 1236 (7th Cir. 1976)..............................................................................................19
N. Cal. River Watch v. Cty of Healdsburg, 496 F.3d 993 (9th Cir. 2007)................................................................................................34
5
NRDC, Inc. v. U.S. E.P.A.,
683 F.2d 752 (3d Cir. 1982).................................................................................................23 NRDC, Inc. v. U.S. E.P.A., 863 F.2d 1420 (9th Cir. 1988)..............................................................................................30 NRDC, Inc. v. U.S. E.P.A., 859 F.2d 156 (D.C. Cir. 1988)..............................................................................................33 NRDC, Inc. v. U.S. E.P.A., 542 F.3d 1235 (9th Cir. 2008)..............................................................................................31 Or. Nat. Desert Ass’n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998)..............................................................................................16
Riverkeeper, Inc. v. U.S. E.P.A., 358 F.3d 174 (2d Cir. 2004).................................................................................................32 Roosevelt Campobello Int’l. Park Comm’n v. U.S. E.P.A., 684 F.2d 1041 (1st Cir. 1982).............................................................................18, 19, 20, 21
Sierra Club v. U.S. E.P.A., 496 F.3d 1182 (11th Cir. 2007)............................................................................................31 State of Ala. v. E.P.A., 557 F.2d 1101 (5th Cir. 1977)..............................................................................................25 Sultan Chemists, Inc. v. U.S. E.P.A., 281 F.3d 73 (3d Cir. 2002)...................................................................................................12 Tex. Savings & Comty. Bankers Ass’n v. Fed. Hous. Fin. Bd., 201 F.3d 551 (5th Cir. 2000)................................................................................................31 U.S. v. Brace,
41 F.3d 117 (3d Cir. 1994)...................................................................................................41 U.S. v. Hubenka,
438 F.3d 1026 (10th Cir. 2006)............................................................................................40 U.S. v. Marathon Dev. Corp., 867 F.2d 96 (1st Cir. 1989).............................................................................................18, 19
U.S. v. Moses, 496 F.3d 984 (9th Cir. 2007)................................................................................................34
6
U.S. v. Phillips, 367 F.3d 846 (9th Cir. 2004)................................................................................................34
U.S. Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977)..........................................................................................18, 19
U.S. District Court Cases
Becerra v. U.S. Dep’t of Interior, 2017 WL 3891678 (N.D. Cal. Aug. 30, 2017).........................................................23, 24, 26 Cal. Sportfishing Protection All. v. Cal. Ammonia Co.,
64 ERC 2041 (E.D. Cal. 2007).............................................................................................35 Haw. Wildlife Fund v. County of Maui,
24 F. Supp. 3d 980 (D. Haw. 2014)......................................................................................36 NRDC, Inc. v. U.S. E.P.A., 437 F.Supp.2d 1137 (Cal. D. Ct. 2006)................................................................................30 N. Cal. River Watch v. Mercer Fraser Co.,
2005 U.S. Dist. LEXIS 42997 (N.D. Cal. 2005)..................................................................36 Ohio Valley Envt’l Coalition, Inc. v. Marfork Coal Co., Inc., 966 F. Supp. 2d 667 (S.D.W. Va. 2013).........................................................................24, 25 Tenn. Clean Water Network v. TVA,
2017 WL 346069 (M.D. Tenn. 2017)...................................................................................36 Sierra Club v. Jackson, 833 F.Supp.2d 11 (D.D.C. 2012)..........................................................................................24 U.S. v. Brink,
795 F. Supp. 2d 565 (S.D. Tex. 2011)..................................................................................40 U.S. v. Hamilton,
952 F. Supp. 2d 1271 (D. Wyo. 2013)............................................................................35, 40 U.S. v. Zanger,
767 F.Supp. 1030 (N.D. Cal. 1991)......................................................................................40 W. Va. Coal Ass’n v. Reilly,
728 F.Supp. 1276 (S.D. W. Va. 1989)............................................................................35, 38 Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC,
141 F.Supp. 3d 428 (M.D. N.C. 2015)................................................................................36
7
Environmental Appeals Board Cases
Gen. Elec. Co., Hooksett, N.H., 4 E.A.D. 468 (EAB 1993).....................................................................................................18
Homestake Mining Co., 2 E.A.D. 195 (EAB 1986).....................................................................................................29
NPC Services, Inc., 3 E.A.D. 586 (CJO 1991).....................................................................................................19
Portland Water Dist., Unpublished Final Order, 1 (EAB 1997)........................................................................17, 18
P.R. Sun Oil Co., 4 E.A.D. 302 (EAB 1992).....................................................................................................19
Rubicon, Inc., 2 E.A.D. 551 (EAB 1988).....................................................................................................29
Star-Kist Caribe, Inc., 3 E.A.D. 758 (EAB 1989).....................................................................................................32
State Supreme Court Cases
Louisville Gas and Elec. Co. v. Ky. Waterways Alliance, 517 S.W.3d 479 (Ky. 2017)..................................................................................................28
State Courts of Appeals Cases
Arnold Irrigation Dist. v. Dep’t of Envtl. Quality, 717 P.2d 1274 (Or. Ct. App. 1986).......................................................................................20
United States Code
5 U.S.C. § 551 (2017).......................................................................................................................39 5 U.S.C. § 553 (2017).................................................................................................................22, 39 5 U.S.C. § 705 (2017).....................................................................................................22, 23, 24, 26 5 U.S.C. § 706 (2017).................................................................................................................12, 39 33 U.S.C. § 1251 (2017).................................................................................................10, 21, 32, 38
8
33 U.S.C. § 1311 (2017).................................................................................................16, 28, 33, 38 33 U.S.C. § 1341 (2012).................................................................................................16, 17, 18, 20
33 U.S.C. § 1342 (2017).....................................................................................24, 28, 30, 31, 32, 33 33 U.S.C. § 1344 (2017).......................................................................................................40, 41, 42 33 U.S.C. § 1362 (2017).......................................................................................................33, 35, 36 42 U.S.C. § 4321 (2017)...................................................................................................................42
Code of Federal Regulations
33 C.F.R. § 230.12 (2017)................................................................................................................42 33 C.F.R. § 320.4 (2017)..................................................................................................................42 33 C.F.R. § 323.2 (2017)..................................................................................................................41 33 C.F.R. § 328.3 (2017)............................................................................................................37, 38 40 C.F.R. § 121.2 (2017)............................................................................................................17, 20
40 C.F.R. § 122.2 (2017)..................................................................................................................37 40 C.F.R. § 122.43 (2017)..........................................................................................................28, 29 40 C.F.R. § 124.53 (2017)................................................................................................................17
40 C.F.R. § 124.55 (2017)....................................................................................................17, 18, 19
40 C.F.R. § 125.3 (2017)............................................................................................................28, 30 40 C.F.R. § 230 (2017).....................................................................................................................42 40 C.F.R. § 401.15 (2017)................................................................................................................36 40 C.F.R. § 423 (2017).....................................................................................................................25
Administrative Materials
Amendments to Streamline the National Pollution Discharge Elimination System Program Regulations: Round Two,
65 Fed. Reg. 30,886-01 (2000).............................................................................................19
9
Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37,054 (June 29, 2015)........................................................................34, 38, 39
EPA, Decision of the General Counsel No. 44 (1976).....................................................................18 EPA, Decision of the General Counsel No. 58 (1977).....................................................................18 Postponement of Certain Compliance Dates for Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 19005 (Apr. 25, 2017).........................................................................24, 26, 27
45 Fed. Reg. 48,620, 48,620 (July 21, 1980)..............................................................................38, 39 45 Fed. Reg. 33,290, 33,424 (May 19, 1980).......................................................................37, 38, 39 44 Fed. Reg. 32,854, 32,901 (June 7, 1979).....................................................................................37
Legislative Materials S. Rep. No. 92-414, *3674 (1972)....................................................................................................38
Other Authorities
EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants, Energy & Environmental Law Adviser (2017), https://www.energyenvironmentallawadviser.com/2017/04/epa-announces-stay-of-deadlines-and-reconsideration-of-elgs-for-steam-electric-power-plants/ (last visited Nov 26, 2017)...............23, 26
10
STATEMENT OF JURISDICTION
This case involves the appeal of a final decision of the Environmental Appeals Board of the
United States Environmental Protection Agency. That decision affirmed the issuance of a final
National Pollutant Discharge Elimination System permit, denying petitions for review pursuant to
40 C.F.R. part 124 (2017). Under 40 C.F.R. § 124.19(a), the Environmental Appeals Board had
proper jurisdiction over the controversy as it pertained to the issuance of a Clean Water Act, 33
U.S.C. § 1251 et seq. (2012), NPDES permit under § 124.15 of the same part. The United States
Court of Appeals for the Twelfth Circuit has appellate jurisdiction pursuant to Section 509(b) of
the Clean Water Act. 33 U.S.C. § 1369(b) (2012).
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Are the conditions requiring closure and remediation of the MEGS coal ash pond considered appropriate requirements of State law under the Clean Water Act § 401 certification, rendering their inclusion in the final NPDES Permit proper?
2. Is the April 12, 2017 Postponement Notice suspending future compliance deadlines for the 2015 ELGs effective to require the suspension of the Permit compliance deadlines to achieve zero discharge of coal ash wastes?
3. Could U.S. EPA Region XII properly rely on Best Professional Judgment as an alternative ground to require zero discharge of coal ash wastes by November 1, 2018?
4. Given U.S. EPA’s suspension of the provision which included waste treatment systems within the definition of waters of the United States, do the NPDES Permit requirements apply to the MEGS pollutant discharges into the MEGS ash pond?
5. Is a CWA § 404 permit for the discharge of fill material prescribed by the ash pond closure and capping plan requirements?
STATEMENT OF THE CASE
I. Summary of the Facts
11
Moutard Electric Generating Station (MEGS) is a coal-fired steam electric power plant
owned by EnerProg, L.L.C. and is located in Fossil, Progress. R. 6. The facility has a closed-cycle
cooling system (cooling tower), with an actual intake flow and design intake flow of less than 125
gallons per day. R. 7. The facility has a wet fly ash handling system and a wet bottom ash handling
system, which uses water to sluice ash solids through pipes to one ash pond, where transport water
undergoes treatment by sedimentation before it is discharged to the Moutard Reservoir. Id.
In 1978, EnerProg dammed the free-flowing upper reach of Fossil Creek to create an ash
pond. R. 7. Fossil Creek does not discharge to Moutard Reservoir but is a perennial tributary to the
Progress River, which is a navigable-in-fact interstate body of water. Id.
MEGS has numerous outfalls. Outfall 001 discharges directly to the Moutard Reservoir
less than once every year when cooling towers and circulating water systems are drained. R. 7.
Outfall 002 discharges directly into Moutard Reservoir via a riser structure from the ash pond. Id.
Internal Outfall 008 discharges waste streams and ash transport water directly into the MEGS ash
pond. R. 8. In Internal Outfall 008, cooling tower blowdown is mixed with fly ash and bottom ash
sluice water prior to discharging into the ash pond. Id. Internal Outfall 009 directly discharges
FGD blowdown to the ash pond. Id. FGD blowdown then indirectly discharges to Moutard
Reservoir via the ash pond treatment system. Id.
The facility is required to build a new Retention Basin to reroute all waste streams that are
currently discharged to the ash pond because of the Progress Coal Ash Cleanup Act (“CACA”). R.
9. Ash transport flows will be eliminated from Internal Outfall 008 upon conversion to dry ash
transport handling, whereby fly ash and bottom ash will be disposed of into a dry landfill. R. 8.
Upon completion of construction of retention basin, discharge from the new lined retention basin
will have Outfall 002A that directly discharges into Moutard Reservoir via Outfall 002. Id. Flows
12
from the ash pond will be re-directed to the retention basin and the ash pond will no longer accept
any wastewater. Id. The retention basin will have a cell where various vacuumed sediments and
solids can be decanted prior to disposal. R. 9-10. This basin will also accept the monofill leachate
which contains coal ash. R. 10. EnerProg is also constructing a new FGD settling basin, the waste
from the basin will be treated by VCE. Id. During severe storms, overflow from the basin may be
routed to Outfall 002 and appropriate TBEL limits are applied to Outfall 002 for such overflows.
Id.
II. Procedural History This is an appeal from the U.S. Environmental Protection Agency’s (“EPA”)
Environmental Appeals Board (“EAB”). U.S. EPA Region XII issued a federal National Pollutant
Discharge Elimination System (“NPDES”) permit to EnerProg on January 18, 2017 for pollutant
discharges from the MEGS. R. 6. The permit was issued pursuant to Section 402 of the Clean
Water Act (“CWA” or “the Act”). Id. On April 1, 2017, Petitioners EnerProg, LLC (“EnerProg”)
and Fossil Creek Watchers, Inc. (“FCW”) petitioned the EAB to review the NPDES permit. Id.
During the Spring 2017 Term, the EAB denied both petitioners’ requests to review the permit. R.
13. Following the EAB’s denial, petitioners timely filed petitions in the Circuit Court of Appeals
of the United States for the Twelfth Circuit for review of the EAB’s decision under Section 509(b)
of the CWA. R. 2.
STANDARD OF REVIEW The review of an EAB decision is governed by the Administrative Procedure Act (“APA”).
5 U.S.C. § 706(2)(A). The EAB’s decision may only be reversed upon a finding by this Court that
the EAB’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in
13
accordance with law.” Id.; See also Sultan Chemists, Inc. v. U.S. E.P.A., 281 F.3d 73, 78 (3d Cir.
2002). Final agency action is accorded a deferential standard of review under the APA. See
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). Furthermore, in determining whether an
agency has acted arbitrarily and capriciously, “the reviewing court ‘must consider whether the
decision was based on a consideration of the relevant factors and whether there has been a clear
error of judgment.’” Marsh v. Or. NRDC, 490 U.S. 360, 378 (1989).
SUMMARY OF THE ARGUMENT
EPA retained the NPDES permitting authority as it pertains to the State of Progress. As the
result of the impending issuance of an NPDES permit by the EPA, pursuant to the CWA, a state
certification from Progress had to first be obtained. Through the course of certifying that the
operation of the MEGS would not violate state and federal water quality standards and appropriate
requirements of state laws, the State of Progress included conditions necessary to ensure
compliance with the CACA legislation. Once the State of Progress included these conditions on
the state certification, neither the EPA nor federal courts had the authority to review the conditions
to determine their consistency with the CWA. Further, even if the courts or the EPA possessed said
authority, because the conditions pertain to water quality, they are appropriate requirements of
State law and were thus properly incorporated into the NPDES permit by EPA.
The Postponement Notice published by EPA fails to suspend the compliance deadlines
certified by the State of Progress in the final NPDES permit because the 2015 ELGs at issue were
still in effect at the time the Notice was published and the postponement was not a final agency
action. Furthermore, the Notice violates the APA by bypassing the repeal process for promulgated
regulations, staying the legal proceedings upon which the postponement is predicated, and failing
14
to engage in the appropriate cost-benefit inquiry. Additionally, EPA could permissibly rely on Best
Professional Judgment (BPJ) in developing a zero-discharge limitation on coal ash wastes as Best
Available Technology in EnerProg’s NPDES permit to ensure compliance with all applicable
requirements of the CWA. Because the 2015 ELGs were in effect at the time the Permit was
issued, and the EPA based its BPJ on the same factors contemplated by the ELGs, the use of BPJ
was a permissible exercise of EPA’s discretion. Alternatively, EPA could use BPJ in writing the
Permit because the CWA is ambiguous as to what precludes the use of BPJ as a “necessary
implementing action,” and the EPA is therefore entitled to Chevron deference. Furthermore,
because the statute is ambiguous and EPA’s interpretation of the statute to allow the use of BPJ to
achieve the legislative goals of the CWA was reasonable, the EPA’s use of BPJ was permissible
under Chevron.
EPA Region XII is failing to protect waters of the United States from pollution,
degradation, and destruction by allowing EnerProg to continue the discharge of pollutants. The
current NPDES permit for EnerProg does not include effluent limitations for pollutant discharges
coming from Outfall 008, which pours into the MEGS ash pond. The MEGS ash pond falls within
the protection of the CWA Section 402 Permit because it was formed by the damming of Fossil
Creek and maintains a significant nexus with Progress River and Fossil Creek. Further, the waste
treatment exclusion should not be given any Chevron deference. In June 1979, the EPA
promulgated the “waste treatment system exclusion” as an exception to Section 402 Permit
protection. When EPA tried to clarify the exclusion and limit its application, the industry promptly
retaliated and EPA “temporarily” suspended its clarification. In 2015, the EPA turned what was
originally adopted as a temporary measure into a permanent exclusion without explanation. The
15
exclusion fails both prongs of the Chevron test. Not only is the exclusion contrary to the statutory
goals of the CWA, but it also violates the mandatory APA notice-and-comment provisions.
Even if the waste treatment exclusion applies for NPDES permit purposes, EnerProg must
apply for a Section 404 permit prior to the MEGS ash pond closure and capping. It is contrary to
Section 404 to allow EnerProg to dewater and fill an ash pond which once was a flowing tributary
to a water of the US without first obtaining a Section 404 fill permit. As previously mentioned, the
MEGS ash pond’s significant nexus to the jurisdictional waters gives it protection as a water of the
U.S. The coal ash involved in the closure and capping constitutes a fill material under Section 404.
EnerProg fails to identify and argue any affirmative defenses for the future unauthorized filling
activities. The recapture provision in Section 404, not within the wastewater exclusion, is
determinative of getting a permit application. The potential negative impact on human health and
the environment is unknown because there have been no tests conducted or mandated by EPA
Region XII.
ARGUMENT
I. THE FINAL NPDES PERMIT PROPERLY INCLUDED CONDITIONS REQUIRING CLOSURE AND REMEDIATION OF THE COAL ASH POND AS PROVIDED BY THE STATE OF PROGRESS IN THE CWA SECTION 401 CERTIFICATION.
As a result of EPA’s impending issuance of an NPDES permit, the State of Progress was
required to issue a section 401 certification assuring the compliance of the MEGS with state and
federal water quality standards, as well as all other appropriate requirements of state law. In
accordance with Federal Regulations and controlling case law, EPA appropriately incorporated all
of the conditions Progress included in the section 401 certification into the resulting NPDES
permit. Both EPA and the federal courts are without the authority to review conditions included in
16
an NPDES permit that are attributable to a state. Additionally, even if EPA or federal courts had
such authority, because the conditions included by the State of Progress relate directly to water
quality, they are properly regarded as appropriate requirement of state law.
A. EPA Was Required to Include all Progress Certification Conditions Without Regard to Their Consistency with CWA Section 401(d).
Pursuant to § 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1) (2012), an applicant for a
federal permit for any activity which may result in a discharge to navigable waters of the United
States must apply for a water quality certification, from the state in which the discharge will
originate, that the activity will comply with state and federal water quality standards. See P.U.D.
No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 709 (1994); Am. Rivers, Inc. v.
F.E.R.C., 129 F.3d 99, 102 (2nd Cir. 1997). Section 401(d) further provides that a § 401
certification:
shall set forth any . . . requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition of any Federal license or permit . . . .
33 U.S.C. § 1341(d).
Guided by the statutory language, courts have held that four conditions must be present to
trigger § 401: (1) the permit or license must be issued by a federal agency; (2) it must be for an
activity that has the potential to discharge; (3) the discharge must be into a water of the United
States, and; (4) the discharge must be from a point source. See Or. Nat. Desert Ass’n v. Dombeck,
172 F.3d 1092 (9th Cir. 1998) (interpreting § 401 to be triggered only when the discharge is from a
point source). Here, the EPA, a federal agency, is issuing an NPDES permit, something required
only when a point source will discharge pollutants into waters of the United States. As a result, all
17
four § 401 conditions are present, thus requiring EnerProg to obtain a water quality certification
from the State of Progress.
Once § 401 of the Act is triggered, a state may grant, condition, deny, or waive its obligation
to certify that the project will comply with federal and state water quality standards. 33 U.S.C. §
1341(a)(1). Section 401(d) further allows the state to impose conditions on a project to assure
compliance with “any other appropriate requirement of state law.” Id. § 1341(d). “Any such
conditions or requirements certified by the State then become ‘attributable to State certification.’”
Portland Water Dist., Unpublished Final Order, 1, 6 (EAB 1997) (quoting 40 C.F.R. § 124.55(e)).
Conditions included in the permit need not focus exclusively on the potential discharge; once §
401 is triggered, the certifying state may develop “additional conditions and limitations on the
activity as a whole.” P.U.D. No. 1, 511 U.S. at 713 (emphasis added). As a result, the State of
Progress was allowed to consider all of the activities involved in the operation of the MEGS as a
whole, and impose conditions necessary to provide a “reasonable assurance” that its operation
would not violate applicable water quality standards or appropriate requirements of state law. 40
C.F.R. § 121.2(a)(3). This is, in fact, precisely what Progress did.
Upon consideration of the MEGS as a whole, Progress imposed conditions necessary to
ensure that the facility would comply with the Progress Coal Ash Cleanup Act (“CACA”). “CACA
is a state-enacted law requiring assessment, closure, and remediation of substandard coal ash
disposal facilities in the State of Progress.” R. at 8. Once the State of Progress included these
conditions in its state certification, EPA was required to incorporate them into the final NPDES
permit. Ackels v. U.S. E.P.A., 7 F.3d 862, 867 (9th Cir. 1993) (finding that “once the state added
the additional conditions, EPA was required to incorporate those conditions into the final permit
and lacked authority to reject them”) (citing to 33 U.S.C. § 1341(a); 40 C.F.R. § 124.53(a)).
18
Indeed, the CWA’s statutory scheme dictates that “[a]ny [state] certification provided under
this section . . . shall become a condition on any Federal license or permit subject to the provisions
of this section.” 33 U.S.C. § 1341(d). EPA has interpreted this provision broadly to preclude
federal agency review, including that of the EPA itself, of state certifications. “Limitations
contained in a State certification must be included in a NPDES permit. EPA has no authority to
ignore State certifications or to determine whether limitations certified by the State are more
stringent than required to meet the requirements of State law.” EPA, Decision of the General
Counsel No. 58 (March 29, 1977). See also EPA, Decision of the General Counsel No. 44 (June
22, 1976).
The NPDES regulations also state that, “[r]eview and appeals of limitations and conditions
attributable to State certification shall be made through the applicable procedures of the State and
may not be made through the procedures in” the Code of Federal Regulations. 40 C.F.R. §
124.55(e). “The courts have consistently agreed with this interpretation, ruling that the proper
forum to review the appropriateness of a state’s certification is the state court, and that federal
courts and agencies are without authority to review the validity of requirements imposed under
state law or in a state’s certification.” Roosevelt Campobello Int’l Park Comm’n v. U.S. E.P.A.,
684 F.2d 1041, 1054 (1st Cir. 1982). See Am. Rivers, Inc., 129 F.3d at 112; Ackels, 7 F.3d at 867;
U.S. v. Marathon Dev. Corp., 867 F.2d 96, 102 (1st Cir. 1989); U.S. Steel Corp. v. Train, 556 F.2d
822, 837-39 (7th Cir. 1977).
This view has been repeatedly espoused by the EAB, having acknowledged the well-
established maxim that the EPA may not “look behind” a State certification issued pursuant to §
401 of the CWA for the purpose of relaxing a requirement of that certification. Portland Water
Dist., Unpublished Final Order, at 6; Gen. Elec. Co., Hooksett, N.H., 4 E.A.D. 468, 470 (EAB
19
1993). See P.R. Sun Oil Co., 4 E.A.D. 302, 314 (EAB 1992); NPC Services, Inc., 3 E.A.D. 586,
588 n.2 (CJO 1991). Thus, EPA is without authority to evaluate the conditions imposed by a state
in its state water quality certification, and may not select among conditions deciding which to
include and which to reject. See Am. Rivers, Inc., 129 F.3d at 110-11.
To date, there has been but one court to find that when a regulated entity has no available
channels of state review, administratively or judicially, due process requires that the regulated
entity be given a hearing before the EPA on the appropriateness of conditions contained in a state
water quality certification. Consol. Coal Co., Inc. v. E.P.A., 537 F.2d 1236, 1236 (4th Cir. 1976).
This decision, however, is completely at odds with the multitude of authorities finding that the
EPA is without authority to review conditions attributable to the state. See 40 C.F.R. § 124.55(e);
Roosevelt Campobello, 684 F.2d at 1054; Am. Rivers, Inc., 129 F.3d at 112; Ackels, 7 F.3d at 867;
Marathon Dev. Corp., 867 F.2d at 102; U.S. Steel Corp., 556 F.2d at 837-839. Furthermore, EPA
itself has rebuked the decision reached in Consol. Coal, noting that “the case has been cited only
twice, only once favorably, and on neither occasion for the proposition” that “due process requires
that the Administrator grant a hearing” when hearings at the state level are foreclosed.
Amendments to Streamline the National Pollution Discharge Elimination System Program
Regulations: Round Two, 65 Fed. Reg. 30,886-01, 30,907 (May 15, 2000). As a result, neither the
EPA nor federal courts possess the authority to review NPDES permitting conditions that are
attributable to the State of Progress. The only option that EPA had besides issuing the NPDES
permit incorporating all conditions added by the State of Progress was to deny issuing the NPDES
permit all together. Am. Rivers, Inc., 129 F.3d at 111.
20
B. Assuming the Question of Consistency is Open to EPA and to the Environmental Appeals Board, the Ash Pond Closure and Remediation Conditions Constitute “Appropriate Requirements of State Law” as Required by CWA Section 401(d).
Assuming, arguendo, that this court and EPA may review the consistency of state
conditions imposed under CWA § 401, the ash pond closure and remediation conditions contained
in Enerprog’s NPDES permit constitute “appropriate requirements of State law” as required by
CWA § 401(d). 33 U.S.C. § 1341(d). As stated above, the Supreme Court has held that once the
threshold of a discharge is reached (a necessary condition for § 401 certification to be applicable),
the conditions and limitations imposed by a state in its certification may address the permitted
activity as a whole, and need not be specifically tied to a “discharge.” P.U.D. No. 1, 511 U.S. at
713. Though this represents a broad interpretation of the permissible considerations a State may
make under § 401(d), the Court went on to note that “[a]lthough § 401(d) authorizes the State to
place restrictions on the activity as a whole, that authority is not unbounded.” Id.
Although the P.U.D. No. 1 Court refused to “speculate on what additional state laws”
might be incorporated by the § 401(d) language, id., one limiting factor consistently applied to
such certifications is that conditions must be related to water quality. See 40 C.F.R. § 121.2(a);
Roosevelt Campobello, 684 F.2d at 1054. The Oregon Court of Appeals explicitly stated that §
401(d) is a “[c]ongressional recognition of all state action related to water quality and
[c]ongressional authorization to the states to consider those actions in imposing limitations on
CWA certificates. It does not, however, allow limitations which are not related to water quality.”
Arnold Irrigation Dist. v. Dep’t of Envtl. Quality, 717 P.2d 1274, 1279 (Or. Ct. App. 1986). There,
the court was reviewing a decision to deny a § 401 certification solely on the basis that the
proposed project was not compatible with the county’s land use ordinances. Id. at 1276. The court
held that although the certifying agency could not deny a § 401 certificate solely because of
21
noncompliance with state and county land use requirements, it may be able to use such
requirements as limitations and conditions on a certificate upon showing how such requirements
affected water quality. Id. at 1279.
Another example of the broad scope of considerations permissible under § 401(d) comes
from the Roosevelt Campobello court. The challenged conditions imposed in that case concerned
“test runs with tanks prior to delivering oil, limiting the size of tankers . . ., requiring real time
simulation studies, and stating times and conditions of navigation . . . .” Roosevelt Campobello,
684 F.2d at 1054. Although the court did not ultimately decide whether they were appropriate
requirements of state law, it did acknowledge that petitioner’s argument that “the conditions listed
above are related to water quality, since they are designed to minimize the risk of an oil spill which
would severely impair water quality” was one that had “some force.” Id.
Further, the congressional declaration of policy in the CWA explicitly states that it is “the
policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of
States to prevent, reduce, and eliminate pollution . . . .” 33 U.S.C. § 1251(b) (emphasis added).
This is exactly the reason why CACA was passed: to “prevent public hazards associated with the
failures of ash treatment pond containment systems, as well as leaks from these treatment ponds
into ground and surface waters.” R. at 8-9. Thus, the CACA conditions included in the state
certification are consistent with both the plain text and the statutory purpose of the CWA.
To adopt EnerProg’s interpretation would require the addition of terms to the statute that
Congress itself excluded. Given the explicit congressional intent to delegate states the authority to
prevent pollution, CACA’s legislative purpose of preventing pollution discharge from treatment
ponds, and the broad interpretation of § 401(d) adopted by the P.U.D. No. 1 Court, it would be
illogical to find that the incorporation of conditions necessary to ensure compliance with CACA
22
was so completely unrelated to water quality as to render them inappropriate requirements of state
law.
II. EPA’S NOTICE OF POSTPONEMENT OF COMPLIANCE DEADLINES FOR THE 2015 ELGS IS NOT EFFECTIVE TO SUSPEND PERMIT COMPLIANCE DEADLINES, AND VIOLATES THE ADMINISTRATIVE PROCEDURES ACT.
The EAB erred in affirming the final NPDES Permit and denying Petitioners’ appeals to
review the final permit. EPA purported to postpone the compliance dates of the Effluent
Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
Category (“the Rule”) by issuing a Notice for the Postponement of Compliance Dates
(“Postponement Notice”) under § 705 of the Administrative Procedure Act (“APA”).
The Notice, however, fails to affect a postponement of compliance dates of the Rule or a
suspension of the compliance deadlines certified by the State of Progress in the final NPDES
permit. Furthermore, the Notice violates the APA by bypassing the repeal process for promulgated
regulations, staying the legal proceedings upon which the postponement is predicated, and failing
to engage in the appropriate cost-benefit inquiry in invoking § 705 of the APA.
A. The EPA was Required to Comply with APA Notice and Comment Requirements in Postponing the Compliance Dates of the Rule.
Whether EPA’s Postponement Notice is effective to suspend the compliance deadlines
depends first on whether the Notice satisfied APA requirements. The EPA’s Postponement Notice
constituted a substantive rule requiring compliance with adequate notice and public comment
procedures under APA § 553. The APA requires that “general notice of proposed [rulemaking]
shall be published in the Federal Register.” 5 U.S.C. § 553(b). It further specifies that the notice
requirement applies to substantive rules, rather than interpretive ones. Courts have repeatedly held
that an indefinite postponement of the effective date of a rule constitutes a substantive rulemaking
under the APA such that the postponement is subject to the APA’s notice and comment
23
requirements. See NRDC, Inc. v. U.S. E.P.A., 683 F.2d 752, 761 (3d Cir. 1982). The EPA
published the Postponement Notice in the Federal Register on April 25, 2017, and subsequently
opened a public comment period regarding the stay of the compliance deadlines of the Rule.
EPA’s Postponement Notice was not effective to postpone the compliance deadlines of the
Rule. Under § 705 of the APA, an agency may postpone “the effective date of action taken by it,
pending judicial review,” when the agency finds that “justice so requires.” 5 U.S.C. § 705. The
agency has mistakenly relied on § 705 of the APA in attempting to stay the compliance dates of
the Rule by conflating the terms “effective date” and “compliance date,” and attempting to
postpone the effective date of the Rule after the effective date has already passed.
B. EPA’s Misuse of APA § 705 Renders the Postponement Notice Ineffective to Postpone the Rule’s Compliance Dates.
By invoking § 705 of the APA, the EPA seeks to incorporate the term “compliance date”
into the meaning of “effective date” under the provision granting relief pending review. However,
compliance date and effective date are terms that have legally distinct and separate meanings.
Becerra v. U.S. Dep’t of Interior, 2017 WL 3891678, *9 (N.D. Cal. Aug. 30, 2017). In Becerra,
the district court held that “the plain language of the statute authorizes postponement of the
‘effective date,’ not ‘compliance dates.’” Id. Similarly, EPA here relies on the judicial review of
the Rule pending in the Fifth Circuit as its justification for the postponement.
EPA then filed a motion, however, “requesting the Fifth Circuit to hold the litigation
challenging the Rule in abeyance while the Agency reconsiders the Rule,” securing a stay in the
very legal proceeding on which the postponement is grounded.1 As the Court in Becerra pointed
1 EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants, Energy & Environmental Law Adviser (2017), https://www.energyenvironmentallawadviser.com/2017/04/epa-announces-stay-of-deadlines-and-reconsideration-of-elgs-for-steam-electric-power-plants/ (last visited Nov 27, 2017).
24
out, the postponement of the Rule’s compliance dates did not “merely ‘maintain the status quo,’”
as EPA claims in the Postponement Notice. 82 Fed. Reg. 19005 (Apr. 25, 2017); See Becerra,
2017 WL 3891678 at *9. Rather, the postponement “prematurely restored a prior regulatory
regime,” id., by indefinitely suspending the date by which EnerProg must comply with the Rule.
Such a suspension would allow the EPA to retroactively nullify the standard imposed by the Rule.
As the Becerra court explained, the federal agency in Sierra Club v. Jackson “properly invoked
section 705 before the rule’s effective date.” Id. at *11 (citing Sierra Club v. Jackson, 833
F.Supp.2d 11, 28 (D.D.C. 2012)). The Becerra court noted the sharp contrast between the agency
in Sierra Club which properly postponed a rule that had not yet been implemented pending judicial
review, and an agency which misuses the § 705 relief mechanism to essentially repeal a rule after
it has already become effective.
Because § 705 of the APA cannot be read to include compliance dates, the effective date
referenced by EPA in the Postponement Notice must refer to the date the Rule became effective.
While the APA provides for the postponement of a promulgated rule’s effective date prior to the
occurrence of said date, such circumstances are not present here. Although the compliance
deadlines will not occur until November of 2018, the effective date of the Rule was January 4,
2016, which precedes EPA’s Postponement Notice by more than a year. As a result, EPA
foreclosed any permissible application of the relief pending review provision of the APA.
C. EPA’s Postponement Notice is Not Effective to Require the Suspension of the Permit Compliance Deadlines.
Even if EPA’s Postponement Notice was sufficient to properly postpone the Rule’s
compliance dates, such postponement would not extend to the Permit’s compliance dates. Section
402(k) of the CWA provides a permit shield for permit holders. 33 U.S.C. § 1342(k). The federal
permit shield’s purpose is to protect from liability permit holders who have complied with all
25
conditions of a permit issued under the CWA. Id. Conversely, the principles protecting permit
holders from liability can hold permit holders to a more stringent standard than that required by
federal regulations.
A district court explained that the permit shield was intended to “‘insulate permit holders
from changes in various regulations during the period of a permit and to relieve them of having to
litigate in an enforcement action the question whether their permits are sufficiently strict.’” Ohio
Valley Envt’l Coalition, Inc. v. Marfork Coal Co., Inc., 966 F. Supp. 2d 667, 676 (S.D.W. Va.
2013) (quoting E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977)). The Ohio Valley
court found that the permit holder would be protected from enforcement actions regardless of
changes in applicable regulations unless the permit holder violated a condition of its NPDES
permit. Id. at 689. Because the permit shield insulates permit holders from changes in regulations
during the permit period, the compliance deadlines of EnerProg’s NPDES permit remain
unaffected by the Postponement Notice.
Assuming, arguendo, that the Postponement Notice is effective, such postponement would
not apply to the compliance deadlines of the Permit because the conditions of a final NPDES
permit based upon federal regulations must be based on the regulations in effect at the time that the
permit is issued. The Fifth Circuit has held that regulations in effect “at the time of initial permit
issuance” should control because “until proposed regulations withstand the rigors of the full
administrative process, they are too tentative to govern the actions of regulated companies.” State
of Ala. v. E.P.A., 557 F.2d 1101, 1110 (5th Cir. 1977).
The Rule withstood “the rigors of the full administrative process,” after which it became a
final rule in 2015. 40 C.F.R. 423. However, EPA’s attempt to repeal that final rule and reconsider
the Rule’s “new, and more stringent, best available technology economically achievable effluent
26
limitations and pretreatment standards,” including the compliance deadlines, is a regulatory change
that has not become final. 82 Fed. Reg. 19005 (Apr. 25, 2017). In fact, the potential change is in
such an early stage that the agency’s reconsideration of the Rule has not even occurred. Because
the regulatory change advanced by EPA is too tentative and the 2015 Rule was in effect at the time
that the final NPDES permit was issued to EnerProg, the Postponement Notice did not suspend the
Permit’s compliance dates.
D. EPA’s Attempt to Postpone the Compliance Deadlines Under § 705 of the APA Violates the Administrative Procedure Act.
As argued above, EPA’s Postponement Notice is not effective to suspend the compliance
deadlines, neither under the Rule nor under the NPDES permit. Moreover, the Postponement
Notice violates the APA because EPA failed to properly invoke the “pending judicial review”
justification for postponement, and further failed to adequately explain why justice requires the
postponement. EPA’s Notice rests the need for postponement on the Rule pending judicial review
in the Fifth Circuit. See 82 Fed. Reg. 19005 (Apr. 25, 2017). Like the agency in Becerra, here the
EPA has justified postponement on the statutory ground of “pending judicial review,” while
simultaneously seeking a stay of the pending legal proceedings so that EPA may reconsider the
Rule at issue.2 As the Becerra court stressed, however, an agency may not exercise its right to
relief pending judicial review while at the same time preventing such judicial review from moving
forward. Becerra, 2017 WL 3891678 at *9. Such manipulation of the judicial process does not
meet the statutory requirement for relief under the APA.
2 EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants, Energy & Environmental Law Adviser (2017), https://www.energyenvironmentallawadviser.com/2017/04/epa-announces-stay-of-deadlines-and-reconsideration-of-elgs-for-steam-electric-power-plants/ (last visited Nov 26, 2017).
27
Additionally, the U.S. Supreme Court has held that in making a decision, an agency must
balance the costs and benefits of a particular decision and may not, under the APA, “entirely [fail]
to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although EPA notes that “the capital
expenditures that facilities incurring costs under the Rule will need to undertake in order to meet
the compliance deadlines for the new, more stringent limitations and standards in the Rule” as its
reasoning that justice requires the postponement of the compliance dates, EPA fails entirely to
address any benefits of meeting the compliance dates required by the Rule. See 82 Fed. Reg. 19005
(Apr. 25, 2017). Given that the benefits of such compliance are an important aspect of whether
implementation or postponement of the Rule serve justice under the APA, this omission results in
an agency decision that is arbitrary, capricious, and violative of the APA.
IV. EPA REGION XII COULD RELY ON BEST PROFESSIONAL JUDGMENT AS AN ALTERNATIVE GROUND FOR REQUIRING ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES.
The EAB correctly affirmed EPA Region XII’s reliance on Best Professional Judgment
(“BPJ”) in developing the NPDES permit requirements at issue. EPA found that the Best Available
Technology (“BAT”) for the discharge of the toxic pollutants mercury, arsenic, and selenium, from
the MEGS coal ash pond is zero discharge based on dry handling of the coal ash wastes. R. 9.
Thus, the Permit requires EnerProg to comply with the zero-discharge limitation by November 1,
2018, based on the permit writer’s BPJ.
A. EPA May Exercise BPJ to Implement Existing Regulations.
Under section 402(a)(1) of the CWA, “the Administrator may, after opportunity for public
hearing issue a permit for the discharge of any pollutant . . . prior to the taking of necessary
implementing actions relating to all such requirements, such conditions as the Administrator
28
determines are necessary to carry out the provisions of this chapter.” 33 U.S.C. § 1342(a)(1). The
Administrator is therefore permitted to exercise BPJ in order to carry out the provisions related to
water pollution prevention.
Where EPA has promulgated a national effluent limitation guideline (“ELG”) for a
particular pollutant or discharge, the permit writer must incorporate the ELG technology-based
limit into the permit. Louisville Gas and Elec. Co. v. Ky. Waterways Alliance, 517 S.W.3d 479,
487 (Ky. 2017); See also 40 C.F.R. 125.3(a). Even where no effluent limit is established for a
pollutant, BPJ may not be warranted if, in developing an ELG, EPA contemplated the pollutant at
issue. Even if the 2015 ELGs for the Steam Electric Power Generating Industry Category (“2015
ELGs”) are vacated, the toxic pollutants at issue here were contemplated and excluded from the
1982 ELGs for the Steam Electric Power Generating Industry Category. Thus, BPJ would
ordinarily not be required in permitting a steam electric power generating point source discharge.
See Louisville Gas and Elec., 517 S.W.3d at 487.
However, in addition to the conditions required in every NPDES permit, conditions may be
established on a case-by-case basis “to provide for and ensure compliance with all applicable
requirements of CWA and regulations.” 40 C.F.R. 122.43(a). Such “applicable requirements” are
“statutory or regulatory requirement[s] which [take] effect prior to the issuance of the permit.” 40
C.F.R. 122.43(b)(1). Furthermore, the CWA requires that dischargers achieve “any more stringent
limitation, including those necessary to meet water quality standards, treatment standards, or
schedules of compliance, established pursuant to any State law or regulations or any other Federal
law or regulation.” 33 U.S.C. § 1311(b)(1)(C).
Under this statutory and regulatory framework, Respondent permissibly used BPJ to
impose additional conditions on the NPDES permit. First, EPA has the discretion to use BPJ to
29
establish technology-based effluent limits using the same factors considered in developing national
ELGs. Rubicon, Inc., 2 E.A.D. 551, 557 (EAB 1988). The regulations also permit the EPA to
impose additional conditions relating to schedules of compliance, such as the November 1, 2018
compliance deadline. 40 C.F.R. 122.43(a). Further, the zero-discharge condition is an “applicable
requirement” of the CWA and regulations because zero discharge of coal ash wastes by the
November 1, 2018 compliance deadline was a condition embedded in the 2015 ELGs, and the
2015 ELGs were in effect at the time that EPA Region XII issued the Permit. Moreover, even if
the 2015 ELGs were vacated, “permit terms and conditions cannot be based on proposed rules
since they are tentative and may change before being promulgated in final form.” Homestake
Mining Co., 2 E.A.D. 195, 198 (EAB 1986). Therefore, EPA could rely on BPJ in developing the
permit conditions based on the same factors as the ELGs in effect at the time that the permit was
issued, as necessary to ensure compliance with all applicable requirements of the CWA and
regulations.
B. Alternatively, EPA’s Reconsideration of the 2015 ELGs Requires the Use of BPJ in Imposing NPDES Permit Conditions and That Interpretation is Entitled to Chevron Deference.
EPA could alternatively exercise BPJ in requiring zero discharge of coal ash wastes given
that EPA’s reconsideration of the 2015 ELGs casts doubt on whether an applicable ELG existed.
EPA’s interpretation of the CWA was reasonably based on its formal position on BAT for the
discharge of toxic pollutants by the steam electric power generating industry. The Second Circuit
has noted that deference is owed when EPA’s position is “adopted in a rulemaking or other formal
proceeding.” Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d
481, 490 (2d Cir. 2001). In that case, EPA’s interpretation was based on a series of informal policy
statements similar to the opinion letter relied upon in Christensen v. Harris Cty., 529 U.S. 576, 587
30
(2000), and was therefore not deserving of “broad deference.” Id. In contrast, EPA’s position here
is based not on informal policy statements, but on the notice-and-comment rulemaking used to
develop the 2015 ELGs. Importantly, when developing permit effluent limits on a BPJ basis, the
permit writer considers the same factors considered by EPA in promulgating an ELG. 40 C.F.R.
125.3(c); 40 C.F.R. 125.3(d). See also NRDC, Inc. v. U.S. E.P.A., 863 F.2d 1420, 1425 (9th Cir.
1988). Therefore, the agency’s position on effluent limits for steam electric power generating
industry discharges, supported by its promulgation of an ELG and consideration of those same
factors in its BPJ analysis, deserves broad deference by the courts.
Section 402 of the CWA provides that the Administrator may impose conditions necessary
to carry out the provisions “prior to the taking of necessary implementing actions relating to all
such requirements.” 33 U.S.C. § 1342(a)(1). Even if the 2015 ELGs were not eliminated, the
agency’s decision to postpone the compliance dates and reconsider the 2015 ELGs casts doubt on
whether the agency had in fact taken “necessary implementing actions relating to all such
requirements,” id. At a minimum, this portion of the statute is ambiguous as it relates to the 2015
ELGs and EPA’s imposition of permit conditions using BPJ. Accordingly, EPA’s interpretation of
the statute is entitled to Chevron deference.
1. Section 402(a)(1) of the CWA is Ambiguous.
The Supreme Court ruled in Chevron, U.S.A., Inc. v. NRDC, Inc. that when reviewing “an
agency’s construction of the statute which it administers,” a court must first determine whether
Congress has directly addressed the question at issue. 467 U.S. 837, 842 (1984). If the statute is
ambiguous or silent on the issue, the court must then determine whether the agency’s action is a
reasonable interpretation of the statute. Id. at 843 The CWA requires that the permitted discharge
31
either meet the effluent limits and other requirements, or meet the conditions imposed by the
Administrator on a BPJ, case-by-case basis. 33 U.S.C. § 1342(a)(1).
Many courts have read this section to mean that permits issued on a BPJ basis were
intended only as a temporary measure until effluent limits for the source category have been
established. See NRDC, Inc. v. U.S. E.P.A., 437 F.Supp.2d 1137, 1160 (Cal. D. Ct. 2006). See also
NRDC, Inc. v. U.S. E.P.A., 542 F.3d 1235, 1251 (9th Cir. 2008). However, the statute is
ambiguous as to what constitutes “necessary implementing actions.” As the Fifth Circuit held, the
appropriate inquiry is whether the statute is silent or ambiguous as to the “precise question at
issue.” Tex. Savings & Comty. Bankers Ass’n v. Fed. Hous. Fin. Bd., 201 F.3d 551, 554 (5th Cir.
2000). Further, “‘a statute is ambiguous if it is susceptible of more than one accepted meaning.’”
Id. (quoting United Services Auto. Ass’n v. Perry, 102 F.3d 144, 146 (5th Cir. 1996)).
Here, the phrase “necessary implementing actions” could be interpreted to mean that BPJ
may only be used to develop effluent limits in the absence of ELGs for a point source category.
The phrase could also be interpreted to mean that BPJ may be used to develop effluent limits at
any time prior to the implementation of a final ELG. The statute is susceptible to more than one
possible construction and is, therefore, ambiguous.
2. EPA Region XII’s Interpretation of § 402 Was Reasonable.
Once a court has determined that the statute is ambiguous, the court must accept any
reasonable interpretation of that statute “‘even if the agency’s reading differs from what the court
believes is the best statutory interpretation.’” Sierra Club v. U.S. E.P.A., 496 F.3d 1182, 1186
(11th Cir. 2007) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 980 (2005)). EPA’s interpretation and use of BPJ is reasonable because EPA has the authority
32
to use BPJ when uniform regulation is not possible, in order to balance competing legislative
goals.
In Riverkeeper, Inc. v. U.S. E.P.A., EPA found that BPJ was appropriate to regulate smaller
facilities and the court held that although Congress’s intent was to provide national uniform
regulations under the CWA, EPA may “[address] certain environmental problems on a case-by-
case basis where . . . it does not violate the statute’s language and is otherwise consistent with
Congress’s overriding goal of improving the quality of the nation’s waters.” 358 F.3d 174, 203 (2d
Cir. 2004). In the instant case, EPA used BPJ to fill the gap between the lack of uniform
regulations due to EPA’s stay of judicial proceedings and reconsideration of the 2015 ELGs; and
the legislative goal of the CWA to achieve the “national goal that the discharge of pollutants into
the navigable waters be eliminated.” 33 U.S.C. § 1251(a)(1). By using BPJ to develop effluent
limits in EnerProg’s permit, EPA interpreted the CWA to allow the agency to continue regulating
the discharge despite uncertainty surrounding the 2015 ELGs and continue moving towards
achieving the legislative goal of the CWA.
Furthermore, the CWA prohibits backsliding, the promulgation of an ELG less stringent
than an earlier BPJ-based effluent limit. 33 U.S.C. § 1342(o). While the anti-backsliding provision
explicitly applies to effluent limits in permits issued on a BPJ basis replaced by subsequently
promulgated ELGs, courts have interpreted EPA’s authority to prevent backsliding broadly. See
Star-Kist Caribe, Inc., 3 E.A.D. 758, 761 (EAB 1989) (finding that the anti-backsliding provision
did not “in any way suggest that EPA is without authority to prohibit backsliding in situations not
specifically covered by the statute”). Additionally, the D.C. Circuit Court noted in NRDC, Inc. v.
U.S. E.P.A., that because “the primary purpose of the CWA is the elimination of all pollutant
discharges . . . it is reasonable for the EPA to require conformance with the most stringent limit
33
applicable to a particular source, whether that be BPJ or a national guideline.” 859 F.2d 156, 202
(D.C. Cir. 1988). EPA reasonably interpreted the ambiguity in CWA § 402 to allow the agency to
further the goals of the CWA and prevent backsliding by exercising BPJ in imposing conditions on
EnerProg’s NPDES permit.
V. SECTION 402 NPDES PERMIT IS REQUIRED FOR POLLUTANT DISCHARGES FROM OUTFALL 008 INTO THE COAL ASH POND.
The current NPDES permit illegally authorizes EnerProg to discharge both bottom and fly
ash pollutants, and cooling tower blowdown into the coal ash pond without subjecting the
discharges to effluent limitations. The CWA requires an NPDES permit when there is an addition
of a pollutant from a point source into a navigable water. See 33 U.S.C. §§ 1342, 1311(a) (2017).
The statute broadly defines “navigable waters” as “the waters of the United States.” Id. at §
1362(7). From Outfall 008, pollutants are discharged into the MEGS ash pond, which was formed
by impounding Fossil Creek, a water of the U.S., and; has a significant nexus to Fossil Creek and
Progress River, a navigable-in-fact water of the U.S. This Court should not allow the application of
the waste treatment exclusion because the exclusion is not entitled to Chevron deference and was
improperly promulgated by failing to follow the APA’s mandatory notice-and-comment
provisions. Nothing in EnerProg’s NPDES permit protects water quality in the jurisdictional
waters connected to MEGS ash pond. EPA cannot relinquish its statutory and administrative
duties.
A. MEGS Coal Ash Pond is a Water of the US under the Significant Nexus Test.
Under the significant nexus test, the MEGS coal ash pond is a water of the U.S. This
significant nexus is a statutory requirement recognized by the Supreme Court and EPA to identify
waters within the scope of the CWA. Rapanos v. U.S., 547 US 715, 767 (2006) (Kennedy, J.,
34
concurring in judgment) (“The required nexus must be assessed in terms of the statutes goals and
purposes.”); SWANCC v. U.S. Army Corps of Engineers, 431 US 159 (2001) (holding CWA did
not support jurisdiction in the fact specific situation over isolated water bodies that had no
significant nexus with navigable waters of the US). The Supreme Court has recognized a
congressional intent to define navigable waters broadly to include at least some waters that would
not be deemed navigable-in-fact under the classical understanding of that term. U.S. v. Riverside
Bayview Homes, Inc., 474 US 121, 133 (1985) (recognizing ecological connections can be used to
determine whether water body is a water of the US because it is not always obvious where the
division between dry land and “waters” lies); Final Clean Water Rule: Definition of “Waters of the
United States”, 80 Fed. Reg. 37,054 (June 29, 2015) [hereinafter Clean Water Rule].
Following the split decision in Rapanos, court and agency decisions have consistently
construed Justice Kennedy’s formulation of the significant nexus as the governing standard.
Rapanos, 547 U.S. at 767; N. Cal. River Watch v. Cty. of Healdsburg, 496 F.3d 993 (9th Cir.
2007); Proposed Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed.
Reg. 22,188 (Apr. 21, 2014); Clean Water Rule (adopting, formally, Justice Kennedy’s plurality
approach in determining waters of the US definition). Justice Kennedy’s approach is more flexible
about the surface connection because he found Justice Scalia’s approach too limiting, exclusive,
and contrary to the broad congressional intent. Rapanos, 547 U.S. at 780. In particular, Justice
Kennedy allowed for a hydrological relationship that might be transient between the waterbody
subjected to federal regulation and a navigable-in-fact waterbody. Id. He even contemplated the
significance of ecological connection. Id.
Fossil Creek is a water of the U.S. because it is a perennial tributary to the Progress River,
a navigable-in-fact interstate body of water. Numerous cases have acknowledged that creeks
35
similar to Fossil Creek are waters of the U.S. subject to CWA jurisdiction. See U.S. v. Phillips, 367
F.3d 846 (9th Cir. 2004) (finding creek to be a water of US even though it was not itself
navigable); U.S. v. Hamilton, 952 F.Supp. 2d 1271 (D. Wyo. 2013); U.S. v. Moses, 496 F.3d 984
(9th Cir. 2007) (holding that creek was a tributary of a river that qualified as a water of the U.S.
where defendant had rerouted and reshaped a creek that only flowed for about two months per year
during spring runoff). While Fossil Creek and Progress River are traditionally navigable waters of
the U.S., not all waters of the U.S. are required to be navigable-in-fact.
In 1978, EnerProg created a surface water impoundment (the coal ash pond) by damming
the free-flowing upper reach of the Fossil Creek. Courts have acknowledged that a waterbody does
not lose its status as a water of the U.S. by impoundment. See W. Va. Coal Ass’n v. Reilly, 728 F.
Supp. 1276, 1289-90 (SD W. Va. 1989) (holding waste treatment ponds were regulated
impoundments, not excluded waste treatment systems); Cal. Sportfishing Protection All. v. Cal.
Ammonia Co., 64 ERC 2041 (E.D. Cal. 2007). It is irrelevant whether the MEGS ash pond is
navigable-in-fact. It is significant that, prior to impoundment, the MEGS pond location was
navigable-in-fact. Unlike the extremely isolated pond in SWANCC, the MEGS pond retains its
significant nexus to the Fossil Creek; water from the MEGS pond retains a surface continuance to
the Fossil Creek via the dam and continues downstream, emptying into Progress River.
B. EnerProg Directly Discharges Pollutants into the Water of the US from Outfall 008.
By impounding a jurisdictional creek, EnerProg created a pond to directly discharge wet
coal ash pollutants and other pollutants via “Internal” Outfall 008. The statute broadly defines
“discharge of pollutants” as “any addition of any pollutant to navigable waters from any point
source.” See 33 U.S.C. § 1362(12) (emphasis added); id. at 1362(19); id. at 1362(6) (providing a
non-exhaustive list of what constitutes a pollutant); id. at 1362(13). The statute also broadly
36
defines “point source” as “any discernible, confined and discrete conveyance, including but not
limited to any pipe...tunnel, conduit...or vessel...from which pollutants are or may be discharged.”
Id. at 1362(14); S. Fla. Water Mgmt. Dist. v. Miccuskee Tribe of Indians, 541 U.S. 95, 105 (2005).
The MEGS ash pond is receiving various amounts of pollutants via the “Internal” Outfall
008. Outfall 008 is a confined, discrete conveyance of these pollutants. Outfall 008 directly
discharges fly ash, bottom ash transport water, and cooling tower blowdown into the MEGS ash
pond, which maintains its significant nexus to Fossil Creek and Progress River. The MEGS ash
pond contains elevated levels of mercury, arsenic, and selenium. EPA has identified these
pollutants as toxic. See 40 C.F.R. § 401.15 (2017). The current NPDES permit does not regulate or
authorize any pollutant from Outfall 008. EnerProg cannot escape statutory obligations by labeling
a source as “internal” when it functions as an outfall spilling into the waters of the U.S. Because no
sampling or tests have been conducted, the potential ecological impact on the rivers themselves
and the communities surrounding Fossil Creek and Progress River is unknown.
Additionally, pollutants from Outfall 008 reach the jurisdictional waters of Fossil Creek
and Progress River via the hydrological connection of the ash pond itself. Multiple courts have
acknowledged that CWA jurisdiction extends to the discharge of pollutants to navigable surface
waters via hydrologically connected groundwater, where the groundwater serves as a conduit
between the point source and the navigable waters. See Tenn. Clean Water Network v. TVA, 2017
WL 346069 (M.D. Tenn. 2017); Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141 F.
Supp. 3d 428, 445 (M.D. N.C. 2015) (affirming CWA jurisdiction over the discharge of pollutants
to navigable surface waters via hydrologically connected groundwater); Haw. Wildlife Fund v. Cty.
of Maui, 24 F.Supp.3d 980 (D. Haw. 2014) ( “… when it is established that groundwater is a
conduit for pollutants, liability may attach to a discharge into that groundwater even if the
37
groundwater is not itself protected under the CWA.”); N. Cal. River Watch v. Mercer Fraser Co.,
2005 U.S. Dist. LEXIS 42997, *7 (N.D. Cal. 2005).
The MEGS ash pond appears to be unlined, allowing pollutants discharged from Outfall
008 and other sources to migrate directly to Fossil Creek and Progress River via hydrologically
connected groundwater. Since the pond is directly above the former creek bed, it reaches the
downstream connected surface waters via the hydrologically connected groundwater. EnerProg
does not dispute the presence of toxic pollutants exiting the ash pond from their own manmade
pipes. It can be inferred that these same toxic pollutants are being discharged into the downstream
jurisdictional waters via the hydrologically connected groundwater. As long as the coal ash
remains in this unlined pond, it will continue to discharge into Fossil Creek and Progress River.
C. The Waste Treatment Exception Should Not be Given Chevron Deference.
The waste treatment exclusion exceeds the EPA and Corps’ authority and violates
procedural requirements of the APA. EPA originally defined waters of the U.S. to include “all
impoundments of waters otherwise identified as waters of the United States.” See 40 C.F.R. §
122.2 (2017). An exclusion for waste treatment systems was first added to the regulatory definition
of waters of U.S. in 1979. 44 Fed. Reg. 32,854, 32,901 (June 7, 1979); 33 C.F.R. § 328.3(b)(1).
However, waste treatment was not defined. In May 1980, EPA limited the scope of the waste
treatment exclusion out of concern that the waste treatment as originally promulgated was far more
sweeping than intended:“[t]his exclusion applies only to manmade bodies of water which neither
were originally created in waters of the U.S. (such as disposal area in wetlands) nor resulted from
the impoundment of waters of the U.S.” 45 Fed. Reg. 33,290, 33,424 (May 19, 1980) [hereinafter
May 19 Clarification]. This regulation’s preamble explained that the CWA was not intended to
38
allow dischargers to freely use waters of the US as waste treatment systems and makes clear that
treatment systems created in those waters or from their impoundment remain waters of the U.S. Id.
Facing industry objections, EPA backtracked and suspended the language limiting the
exclusion to man-made systems, without opportunity for public comment, explaining that the
suspension was “temporary” and that the EPA would “promptly” amend the rule or terminate the
suspension. 45 Fed. Reg. 48,620, 48,620 (July 21, 1980) [hereinafter July 21 Suspension]. The
industry and EPA opined “that the language of the regulation would require them to obtain permits
for discharges into existing waste treatment systems...which had been in existence for many years.”
Id. (emphasis added). Following the temporary July 21 Suspension, courts still recognized that the
waste treatment exclusion did not apply to treatment ponds created from waters of the U.S. See W.
Va. Coal Ass’n., 728 F. Supp. at 1989-90. However, this “temporary” suspension was made
permanent by the Clean Water Rule. Clean Water Rule at 37,114. This rule asserts that it
represents a longstanding practice, that there has been “no substantive changes to the exclusion,”
and refuses to accept comments. Id. at 37,097.
1. The Waste Treatment Exclusion Fails Under Chevron’s Two Prong Test.
Regulations concerning the temporary-to-permanent waste treatment exception do not
deserve Chevron deference. See Chevron, 467 U.S. at 842. Under Chevron’s first prong, the waste
treatment exclusion violates CWA’s plain language and contravenes clear congressional intent.
Congress’s fundamental purpose for the CWA is to protect the chemical, physical, and biological
integrity of waters of the U.S. See 33 U.S.C. § 1311(a) (2017); Id. at § 1251(a)(1); 33 C.F.R. §
328.3(a) (2017). Congress expressed that CWA would apply to all waters of the U.S. regardless of
how those waters were used. See S. Rep. No. 92-414, *3674 (1972) (“The use of any
river...stream...as a waste treatment system is unacceptable”). Thus, the May 19 Clarification was
39
consistent with congressional intent. The CWA does not empower agencies to convert waters of
the U.S. to exclude them from CWA jurisdiction. The permanent exclusion codification is far more
sweeping than originally intended by the temporary exclusion.
Even if the court reaches Chevron’s second prong, EPA acted arbitrarily and capriciously
in permanently adopting the waste treatment exclusion. EPA repeatedly failed to exercise
discretion in a reasoned and consistent manner in both the June 21 Suspension and Clean Water
Rule 2015. This antithetical exclusion creates a loophole for companies to impound jurisdictional
waters and discharge unlimited pollutants without being subject to effluent limitations. EPA
further failed to include a discussion of how the waste treatment system exclusion is warranted by
scientific or technical information in the record. These factors weigh in favor of finding EPA’s
decision to be arbitrary and capricious, and against giving the agency Chevron deference.
2. The Waste Treatment Exception Violates the APA Notice-and-Comment Provisions.
The temporary-to-permanent adoption of the wastewater treatment exclusion for NPDES
permits violates the notice-and-comment requirements of the APA. See 5 U.S.C. § 553 (2017); Id.
at § 551(5) (2017). The July 21 Suspension did not have formal notice-and-comment period and is
not a product of the same analytical rigor or public scrutiny as the May 19 Clarification. The Clean
Water Rule amended the July 21 Suspension by making it permanent which is a substantive
change requiring an opportunity for public comment. The public, however, was denied the
opportunity to comment on the permanent codification of an exclusion permitting waters to be
used as waste dumps, in direct violation of the APA. See 5 U.S.C. § 706(2)(D) (2017).
An agency cannot work around the mandatory APA provision by calling a suspension
temporary and then, after a period of time, insist that the same suspension is now permanent
without offering the public an opportunity to provide commentary. Further, the July 21 Suspension
40
was never intended to apply to the MEGS ash pond, which was created by impounding a
jurisdictional waste stream only two years before the “temporary” exclusion. This is not the “in
existence for many years” that the industry and EPA expressed concern about in July 1980.
VI. EVEN IF WASTE TREATMENT EXCLUSION APPLIES, ENERPROG MUST OBTAIN SECTION 404 PERMIT PRIOR TO ASH POND CLOSURE & CAPPING.
Even if the waste treatment exclusion applies for Section 402 permit purposes to the coal
ash pond discussed above, EnerProg is required to acquire a CWA Section 404 permit. Regardless
of Section 402 conclusions, a Section 404 analysis is required. Section 404 regulates the creation
of impoundments from waters of the U.S. and mandates a permit for the discharge of fill material
into waters of the U.S. 33 U.S.C. § 1344(a) (2017). A CWA violation under Section 404 occurs
when: (1) there is CWA jurisdiction over the subject waters; (2) there is dredging or filling in those
waters, and; (3) these activities are done without a Section 404 permit. See U.S. v. Zanger, 767
F.Supp. 1030, 1033 (N.D. Cal. 1991) (finding filling in and grading or changing of bottom
elevations of creek constituted discharge of fill); U.S. v. Brink, 795 F.Supp. 2d 565, 576 (S.D. Tex.
2011) (finding defendant violated CWA by discharging into jurisdictional creek without obtaining
a Section 404 permit); U.S. v. Hamilton, 952 F.Supp. 2d at 1274; U.S. v. Hubenka, 438 F.3d 1026,
1035 (10th Cir. 2006). As mentioned in the previous section, MEGS ash pond’s significant nexus
to the jurisdictional waters gives it protection as a water of the U.S. Closure of the coal ash pond
requires that it be drained and filled, triggering Section 404. EnerProg has not successfully asserted
any affirmative defenses, and it is unknown what impact the closure will have on the surrounding
ecological system.
A. The Coal Ash Involved in the Closure and Capping Constitutes a Fill Material.
Dewatering of the pond and accumulation of fill material to permanently stay in the pond
qualifies as “filling.” The regulatory definition of “fill” is “material placed in the waters of the U.S.
41
where the material has the effect of (i) replacing any portion of a water of the U.S. with dry land;
or (ii) changing the bottom elevation of any portion of a water of the U.S. 33 C.F.R. § 323.2(e)(1)
(2017). Some fill material examples include “rock, sand, soil, clay, plastics, construction
debris...and materials used to create any structure or infrastructure in the waters of the U.S.” 33
C.F.R. § 323(2)(e)(2) (2017); Id. at 323.2(f) The discharge of this fill material outright displaces
the receiving water of the coal ash pond that was once apart of the free-flowing Fossil Creek. The
accumulation of the abandoned ash permanently changes the bottom elevation of the former
waterbed of the jurisdictional Fossil Creek. Replacing the pond with dry land constitutes as a
“discharge of fill material” and is violative of Sections 301 and 404.
B. EnerProg Failed to Establish Any Affirmative Defenses for Unauthorized Filling.
EnerProg has not met their burden to establish any affirmative defenses for their
unauthorized activities. EAB reasoned that the waste treatment systems did not contain any
recapture provision that would convert the features back into the waters of the U.S. However, the
EAB’s focus on a recapture provision in the waste treatment system is misplaced. Section 402 and
Section 404 permits are viewed separately and provide different analysis. The statute does identify
exemptions from Section 404 permitting requirements, which may be used as an affirmative
defense. 33 U.S.C. § 1344(f)(1) (2017); U.S. v. Brace, 41 F.3d 117, 124 (3d Cir. 1994). However,
it also recognizes a recapture provision, which requires even exempted activities to obtain a
Section 404 permit if it falls within the recapture provision’s scope. The permit is required for any
discharge of fill material into navigable waters that brings an area into a use to which it was not
previously subject, where flow or circulation of navigable waters would be impaired. Id. at §
1344(f)(1); See Brace, 41 F.3d at 124 (holding that to avoid Section 404 permit requirements,
42
defendant was required to show its activity fell within a statutorily recognized exemption and that
it did not avoid recapture).
Upon closure, the ash pond would no longer qualify as a waste treatment system. The
absence of a recapture provision under Section 402 does not preclude the need for a Section 404
permit which has its own analysis. Section 404 only allows exemptions to specifically identified
activities, which EnerProg has failed to argue their activities fall under. Even if EnerProg’s filling
fell within a Section 404 exclusion, it would need to avoid the recapture provision to proceed
without a Section 404 permit. EnerProg cannot avoid the recapture provision because filling is
done to bring “an area of the navigable waters into a use to which it was not previously subject,
where the flow or circulation of navigable waters may be impaired.” Decommission of the ash
pond impairs the flow and circulation of navigable waters.
C. EnerProg’s Ash Pond Closure and Capping Violates CWA Because There Has Been No Impact and Mitigation Analysis.
The impact on the surrounding watershed or the downstream impacts has not been
analyzed. Congress promulgated standards that focus on avoiding discharges where possible,
minimizing those that cannot be avoided, and mitigating (or compensating) for adverse effects of
unavoidable discharges. See generally 40 C.F.R. § 230 (2017); 42 U.S.C. §§ 4321 et seq. The
Corps must reject permit applications to dredge and fill where “practicable alternatives” exist that
would have a “less adverse impact” on the aquatic environment. 33 U.S.C. § 1344(b)(1) (2017); 33
C.F.R. §§ 230.12(a)(3)(i)-(iv) (2017). Proposed permits need to be considered in light of the public
interest. 33 C.F.R. § 320.4(a)(1) (2017). The Corps considers numerous factors such as: aesthetics;
recreation; land use; water supply and conservation; water quality, and; fish and wildlife values. Id.
(listing all factors Corps must consider). In this balancing analysis, the Corps must consider
cumulative effects. Id. The 404 application may also trigger the Corps responsibilities under NEPA
43
(i.e., environmental impact statement). EnerProg has no proposed permit to balance any of the
Section 404 factors. Even after EnerProg ceases operational use of the coal ash pond, the surface
impoundments pose ongoing risks. A Section 404 permit is required in order for these issues to be
adequately analyzed.
CONCLUSION
For the above reasons, Fossil Creek Watchers, Inc. asks this court to uphold the
Environmental Appeals Board’s holding that: EPA was required to include all such Progress
certification conditions without regard to their consistency; even if EPA or federal courts had the
authority to evaluate § 401 certification conditions, they are appropriate requirements of state law;
EPA’s Postponement Notice was not effective to suspend the NPDES Permit compliance dates;
and EPA could rely on BPJ in developing the NPDES Permit. Additionally, Fossil Creek
Watchers, Inc. asks this court to reverse the Environmental Appeals Board’s finding that:
discharges into the MEGS ash pond are not subject to effluent limits pursuant to Section 402; ash
pond closure and capping plan does not require a permit for the discharge of fill material pursuant
to Section 404.