measuring brief€¦ · · 2018-01-17measuring brief brief of fossil creek ... united marine...
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Team Number: 48
MEASURING BRIEF BRIEF OF FOSSIL CREEK WATCHERS, INC.,
Petitioner
1
Team No. 48
______________________________________________________________________________
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 for the United States Environmental
Protection Agency, Washington D.C.
______________________________________________________________________________
BRIEF OF FOSSIL CREEK WATCHERS, INC.,
Petitioner
_____________________________________________________________________________
Oral Argument Requested
2
TABLE OF CONTENTS
TABLE OF AUTHORITIES..........................................................................................................iii
STATEMENT OF JURISDICTION...............................................................................................1
STATEMENT OF THE ISSUES....................................................................................................2
STATEMENT OF THE CASE.......................................................................................................3
STATEMENT OF THE FACTS.....................................................................................................3
STANDARD OF REVIEW.............................................................................................................5
SUMMARY OF THE ARGUMENT..............................................................................................5
ARGUMENT...................................................................................................................................7
I. THE FINAL PERMIT PROPERLY INCLUDED CONDITIONS REQUIRING
CLOSURE AND REMEDIATION OF THE COAL ASH POND AS PROVIDED
BY THE STATE OF PROGRESS……………………………………………………7
A. States have the primary authority in issuing conditions attached to federal permits
and the EPA has no authority to individually review their consistency with CWA
§401(d)…………………………………………………………………………….9
B. Conditions constitute an “appropriate requirement of State Law” but they
independently violate the Clean Water Act Section 404…………………….......12
II. THE EPA ADMINISTRATOR’S NOTICE SUSPENDING FUTURE
COMPLIANCE DEADLINES FOR THE 2015 EFFLUENT LIMITATION
GUIDELINES IS NOT EFFECTIVE TO SUSPEND THE ZERO DISCHARGE OF
COAL ASH TRANSPORT WATERS WITHOUT BEING SUBJECT TO THE
NOTICE AND COMMENT REQUIREMENT OF APA § 553…………………….14
III. THE EPA’S RELIANCE ON BEST PROFESSIONAL JUDGMENT REQUIRING
ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES IS JUSTIFIED
REGARDLESS OF THE 2015 EFFLUENT LIMITATION GUIDELINES………..18
IV. THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
PERMITTING REQUIREMENTS APPLY TO ENERPROG’S POLLUTANT
DISCHARGES INTO THE MOUTARD ELECTRIC GENERATING STATION’S
ASH POND BECAUSE THESE DISCHARGES INTO THE ASH POND ARE
SUBJECT TO EFFLUENT LIMITS…………………………………………….......20
3
A. The key Provision of 40 C.F.R. § 122.2(2)(i) should apply in the present case
because the Federal Regulations attempting to suspend it are in violation of 5
U.S.C. § 553……………………………………………………………………...22
i. Federal Regulations 45 Fed. Reg. 48,620 and 48 Fed. Reg. 14,153 are
unable to suspend the Provision of 40 CFR § 122.2(2)(i) because they fail
to follow the rule making requirements of 5 U.S.C. § 553………………23
ii. Federal Regulation 80 Fed. Reg. 37,114 is unable to suspend the Provision
of 40 CFR § 122.2(2)(i) because it fails to follow the rule making
requirements of 5 U.S.C. § 553…………………………………………..25
B. The key Provision of 40 C.F.R. § 122.2(2)(i) should apply in the present case
because it has been applied by another circuit court………………………..……27
V. ONCE CLOSED, THE CLOSED COAL ASH POND WILL NO LONGER
QUALIFY AS A WASTE TREATMENT SYSTEM AND THEREFORE IS
SUBJECT TO THE PERMITTING REQUIREMENTS OF 33 U.S.C. § 1344….…28
A. The closed and capped coal ash pond would be within a “water of the United
States” and is therefore subject to the permitting requirements of 33 U.S.C. §
1344……………………………………………………………………………....28
B. The proposed coal ash pond closure and capping plan would turn the former ash
pond into fill material because it replaces a portion of a water of the United States
with dry land and also changes the bottom elevation of a water of the United
States…………………………………………………………………………..…31
TABLE OF AUTHORITIES
Supreme Court Opinions
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984)...........................................................................................................16
Escondido Mut. Water Co. v. La Jolla., Rincon, San Pasqual, Pauma, & Pala Bands of Mission
Indians,
466 U.S. 765 (1984)...........................................................................................................17
PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology,
511 U.S. 700 (1994)...........................................................................................................18
Rapanos v. United States,
547 U.S. 715 (2006).....................................................................................................34, 35
S.D. Warren Co. v. Main Bd. Of Envtl. Prot.,
547 U.S. 370 (2006)...............................................................................................14, 15, 17
4
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers,
531 U.S. 159 (2001).....................................................................................................34, 35
United States v. Riverside Bayview Homes,
474 U.S. 121 (1985)...............................................................................................34, 35, 36
Circuit Court Opinions
Alabama Rivers All. V. F.E.R.C.,
325 F.3d 290 (D.C. Cir. 2003)...........................................................................................16
Alcoa Power Generating, Inc. v. F.E.R.C.,
643 F.3d 963 (D.C. Cir. 2011)...........................................................................................16
Am. Rivers, Inc. v. F.E.R.C.,
129 F.3d 99 (2d Cir. 1997)...........................................................................................13, 17
Batterton v. Marshall,
648 F.2d 694, 708 (D.C. Cir. 1980)...................................................................................20
Catskill Mts. Chapter of Trout Unlimited v. City of New York,
451 F.3d 77, 85 (2d Cir. 2006)…………………………………………………………...24
City of Tacoma, Wash. V. F.E.R.C.,
460 F.3d 53 (D.C. Cir. 2006).............................................................................................17
Clean Air Council v. Pruitt,
862 F.3d 53 (D.C. Cir. 2017).............................................................................................21
Consumer Energy Council v. F.E.R.C.,
673 F.2d 425, 446 (D.C. Cir. 1982).............................................................................20, 22
Council of Southern Mountains, Inc. v. Donovan,
653 F.2d 573, 580 (D.C. Cir. 1981)...................................................................................22
Environmental Defense Fund v. Gorsuch,
713 F.2d 802 (D.C. Cir. 1983)…….……………………………………………..19, 20, 21
Home Box Office v. F.C.C.,
567 F.2d 9 (D.C. Cir. 1977).............................................................................28, 29, 30, 31
Int’l Union, United Marine Workers of Am. v. Mine Safety & Health Admin.,
407 F.3d 1250 (D.C. Cir. 2005).........................................................................................28
Keating v. F.E.R.C.,
927 F.2d 616(D.C. Cir. 1991)......................................................................................16, 17
5
Lake Carriers’ Ass’n v. E.P.A.,
652 F.3d 1 (D.C. Cir. 2011).........................................................................................14, 15
Nat’l Family Planning and Reproductive Health Ass’n v. Sullivan,
979 F.2d 227 (D.C. Cir. 1992)…………………………………………………………...21
N.R.D.C. v. Abraham,,
355 F.3d 179 (2d Cir. 2004)...............................................................................................20
N.R.D.C. v. U.S. E.P.A.,
683 F.2d 752 (3d Cir. 1982)...............................................................................................20
N.R.D.C. v. U.S. E.P.A.,
822 F.2d 104 (D.C. Cir. 1987)…….……………………………………………………..24
N.R.D.C. v. U.S. E.P.A.,
859 F.2d 156 (D.C. Cir. 1988)...........................................................................................24
Prometheus Radio Project v. F.C.C.,
652 F.3d 431 (3d Cir. 2011).......................................................................27, 28, 29, 30, 31
Public Citizen v. Steed,
733 F.2d 93 (D.C. Cir. 1984).............................................................................................20
Roosevelt Campobello Int’l Park Com. V. U.S. E.P.A.,
684 F.2d 1041 (1st Cir. 1982)............................................................................................15
Snoqualmie Indian Tribe v. F.E.R.C.
545 F.3d 1207 (9th Cir. 2008)…………………………………………………………...11
S.D. Warren Co. v. Bd. of Envtl. Prot., 868 A.2d 210 (Me. 2005)………………………………………………………………..18
Texas Oil & Gas Assoc’n v. U.S. E.P.A.,
161 F.3d 923 (5th Cir. 1998).............................................................................................24
United States v. Puerto Rico,
721 F.2d 832 (1st Cir. 1983)..............................................................................................16
United States v. TGR Corp.,
171 F.3d 762 (2d Cir. 1999)...............................................................................................32
District Court Opinions
Am. Water Works Ass’n v. U.S. E.P.A.,
40 F.3d 1266 (D.C. Cir. 1994) ..............................................................................28, 29, 31
6
Lake Erie All. For Prot. Of Coastal Corridor v. U.S. Army Corps of Eng’rs,
526 F. Supp. 1063 (W.D. Pa. 1981) ..................................................................................14
Mobil Oil Corp. v. Kelley,
426 F. Supp. 230 (E.D. Ala. 1976) ...................................................................................14
Statutes
5 U.S.C. § 553....................................................................11, 12, 19, 20, 22, 23, 27, 28, 29, 30, 31
5 U.S.C. § 705................................................................................................................................19
5 U.S.C. § 706................................................................................................................................10
33 U.S.C. § 1311....................................................................................................12, 26, 28, 32, 33
33 U.S.C. § 1342............................................................8, 11, 12, 13, 19, 23, 24, 25, 26, 28, 32, 33
33 U.S.C. § 1344..............................................................................................19, 33, 34, 36, 37, 38
33 U.S.C. § 1362............................................................................................................................35
Regulations
40 C.F.R. § 122.2.............................................................................7, 12, 26, 27, 28, 29, 30, 31, 32
40 C.F.R. § 125.3...........................................................................................................................23
45 Fed. Reg. 48,620.........................................................................................27, 28, 29, 30, 31, 32
48 Fed. Reg. 14,153.....................................................................................................28, 29, 30, 32
48 Fed. Reg. 14,163.................................................................................................................27, 28
80 Fed. Reg. 37,114...............................................................................................27, 28, 30, 31, 32
82 Fed. Reg. 19,005.......................................................................................................................22
Other
NPDES Permit Writer’s Manual (Sept. 2010) ..............................................................................24
118 Cong. Rec. 33756-33757 (1972) ............................................................................................34
STATEMENT OF JURISDICTION
The judgment of the Environmental Appeals Board of the United States Environmental
Protection Agency was entered in Spring 2017. (No. 17-0123). The Environmental Appeals
Board (EAB) had jurisdiction over this matter because it has jurisdiction to review permit
appeals in environmental matters. 40 C.F.R. § 124.19(a). Appellant gave timely notice of
appeal from the EAB’s decision to this Court. Jurisdiction lies in this Court pursuant to 33
U.S.C. § 509(b).
STATEMENT OF ISSUES
1. Whether the Final 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, including the questions:
a. Whether EPA was required to include all such Progress certification conditions
without regard to their consistency with CWA section 401(d); and
b. Assuming the question of the consistency of the conditions with CWA section
401(d) is open to EPA and to this reviewing court, whether the ash pond closure
and remediation conditions constitute “appropriate requirements of State law”
as required by CWA section 401(d).
2. Whether the April 25, 2017 EPA Notice suspending certain future compliance deadlines
for the 2015 Final Effluent Limitation Guidelines for the Steam Electric Power
Generating Industry is effective to require the suspension of the permit compliance
deadlines for achieving zero discharge of coal ash transport water.
3. Whether EPA Region XII could rely on Best Professional Judgment as an alternative
ground to require zero discharge of coal ash transport wastes, independent of the
applicability or effectiveness of the 2015 Steam Electric Power Generating Industry
Effluent Limitation Guidelines.
4. Whether NPDES permitting requirements apply to EnerProg’s pollutant discharges into
the MEGS ash pond, in light of EPA’s July 21, 1980 suspension of the provision of 40
C.F.R. section 122.2 that originally included waste treatment systems formed by
impounding pre-existing waters of the United States within the regulatory definition of
waters of the United States.
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5. Whether the ash pond closure and capping plan requires a permit for the discharge of fill
material pursuant to section 404 of the CWA.
STATEMENT OF THE CASE
On January 18, 2017, EPA Region XII issued a National Pollutant Discharge Elimination
System (NPDES) permit to EnerProg, pursuant to the Clean Water Act (CWA). R. at 6; 33
U.S.C. § 1342 (2012). The NPDES permit allows EnerProg to continue discharging pollutants
into waters around its Moutard Electric Generating Station (MEGS), located in Fossil, Progress.
R. at 6. However, the state of Progress issued a certification for the renewal of the MEGS
NPDES permit provided that EnerProg cease operation of its MEGS ash pond by November 1,
2018, complete a dewatering of its ash pond by September 1, 2019, and cover the dewatered ash
pond with an impenetrable cap by September 1, 2020. R. at 8, 10.
On April 1, 2017, EnerProg and Fossil Creek Watchers (FCW) filed petitions for review
of the NPDES permit re-issuance pursuant to 40 C.F.R. 124. Id. at 6. Both petitioners requested
the permit be remanded to EPA Region XII for further consideration. Id. Upon review, the EAB
affirmed the NPDES renewal in its entirety and denied the appeals of both EnerProg and FCW.
Id.
EnerProg and FCW timely filed petitions with this Court seeking judicial review of the
final decision of the EAB. R. at 2. On September 1, 2017, this Court requested briefs and
arguments on the issues. Id. at 4.
STATEMENT OF FACTS
EnerProg’s MEGS is an electric generating plant that draws water from the Moutard
Reservoir. Id. at 7. The facility uses water from the reservoir to transport wastes to an ash pond.
Id. The transport water undergoes treatment at the ash pond before it is discharged back into the
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Moutard Reservoir. Id. The ash pond was created by damming the up-stream portion of Fossil
Creek. Id. Fossil Creek is a perennial tributary to the Progress River, a navigable-in-fact
interstate body of water. Id.
The MEGS operate five outfalls: Outfall 001, outfall 002, internal outfall 008, internal
outfall 009, and outfall 002A. R. at 7-8. Outfalls 008, 009, and 002A deposit into outfall 002.
Id. at 7-8. Outfall 002 is the ash pond, which deposits directly into the Moutard Reservoir. Id. at
7-8. The discharges from Outfall 002 contain elevated levels of mercury, arsenic, and selenium,
all of which are toxic pollutants. Id. at 9. Outfall 001 also deposits directly into the Moutard
Reservoir. Id. at 7. Outfall 008 mixes waste waters from various outfalls before it deposits into
outfall 002. Id. at 8.
According to the 2015 revised Effluent Limitation Guidelines (ELGs), the Best Available
Technology (BAT) for toxic discharges in the coal ash pond is zero discharge. R. at 9.
Therefore, the State of Progress issued a certification pursuant to Section 401 of the CWA for
renewal of the MEGS NPDES permit, id. at 8, provided that EnerProg ceases operation of its ash
pond by November 1, 2018, completes a dewatering of its ash pond by September 1, 2019, and
covers the dewatered ash pond with an impenetrable cap by September 1, 2020. Id. These
requirements are designed to ensure that EnerProg complies with the Coal Ash Cleanup Act
(CACA), a state-enacted law designed to prevent public hazards associated with the failures of
ash treatment pond systems. Id.
EPA administrator Scott Pruitt issued a Notice purporting to suspended the compliance
dates for the ELGs, r. at 6, but the writer of the NPDES permit determined that according to his
best professional judgement, the MEGS is capable of meeting the compliance deadline of
November 1, 2018. Id. at 9. Therefore, the state of Progress nonetheless required EnerProg to
10
cease operation of its ash pond by November 1, 2018, complete a dewatering of its ash pond by
September 1, 2019, and cover the dewatered ash pond with an impenetrable cap by September 1,
2020. Id. at 8, 10.
On April 1, 2017, EnerProg and FCW requested the permit be remanded to EPA Region
XII for further consideration. Id. at 6. The EAB affirmed the NPDES renewal in its entirety and
denied the appeals of both EnerProg and FCW. Id. Both parties submitted timely appeals to this
Court and the matter is now ripe for discussion.
STANDARD OF REVIEW
The controlling standard of review is governed by the Administrative Procedure Act to
determine whether the agency’s actions were “arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C.S § 706(2)(A), and whether the permit was
promulgated "without observance of procedure required by law," §706 (2)(D). An agency
decision promulgated by the EPA may be reversed under the arbitrary and capricious standard “if
the agency relied on factors that Congress did not intend it to consider, or offered an explanation
. . . so implausible that it could not be ascribed to . . . the product of agency expertise.”
Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1212 (9th Cir. 2008), quoting Sierra Club v.
EPA, 346 F.3d 955, 961 (9th Cir. 2003), amended by 352 F.3d 1186 (9th Cir. 2003).
SUMMARY OF THE ARGUMENT
The Final Permit issued by the EPA to EnerProg, L.L.C. properly included conditions
requiring closure and remediation of the coal ash pond as provided by the State of Progress. The
EPA is required to include all State certification conditions without regard to their consistency
with 401(d) because the State is the primary authority in conditioning discharge permits to meet
state-established water quality standards. The EPA may not individually rule on conditions, but
11
may either (1) deny the permit in full, or (2) contest the conditions in state court, under
applicable state authority. Should the Court find the conditions reviewable, the conditions are
“appropriate requirements of State law,” but they independently violate the CWA §404 requiring
a fill and dredge permit.
Postponing compliance with effluent limitations would affect both EnerProg by relieving
them of an established NPDES permit obligation, and the general public by allowing a level of
pollution discharge contrary to such established permit levels. The April 12, 2017 EPA Notice
suspending certain future compliance deadlines for the Final Effluent Limitation Guidelines for
the Steam Electric Power Generating Industry is not effective to suspend the zero discharge of
coal as transport waters.
Section 553 of the Administrative Procedure Act controls this issue because the suspension
of compliance dates of a final rule that has already passed the effective date is the equivalent of
rulemaking, and therefore, must be subject to a notice and comment period before
implementation. Further, the “good cause” exception of section 553 of the APA in the case at bar
does not qualify as an “emergency situation” because EnerProg has not argued the presence of an
emergency, nor has it argued that meeting the compliance deadline would be infeasible.
EPA Region XII’s reliance on Best Professional Judgment requiring zero discharge of coal ash
transport wastes is justified independent of the applicability of the 2015 Effluent Limitations
Guidelines. The permit writer’s authority to rely upon BPJ is derived from §1342 of the CWA, in
which a “case-by-case” determination is allowable. The Region XII EPA permit writer
considered relevant factors such as industry standard, cost analysis, and value accomplished via
compliance.
12
The NPDES permitting requirements apply to EnerProg’s discharges into the coal ash
pond because the discharges are subject to effluent limitations. The suspension of the key
provision of 40 C.F.R. §122.2 violates the rulemaking requirements of 5 U.S.C. §553(b) and is,
therefore, inapplicable. The discharges are subject to effluent limitations in light of this
suspension because any discharge into a waste treatment system formed out of a water of the
United States is subject to NPDES permitting requirements.
Finally, the coal ash pond closure and capping plan would cause the coal ash pond to
constitute fill material within a water of the United States. The definition of “waters of the
United States” has been interpreted broadly by the Supreme Court and the closed and capped ash
pond is considered a water of the United States. Further, the closure and capping of the ash pond
constitutes fill material because a portion of Fossil Creek is replaced with dry land and the
bottom elevation of the Creek is changed. With both requirements fulfilled, a section 404 fill and
dredge permit is required.
ARGUMENT
I. THE FINAL PERMIT PROPERLY INCLUDED CONDITIONS REQUIRING
CLOSURE AND REMEDIATION OF THE COAL ASH POND AS
PROVIDED BY THE STATE OF PROGRESS
The Clean Water Act, in Section 301(a), finds unlawful “the discharge of any pollutant by
any person” into the navigable waters of the United States, except when in compliance with the
terms of the Act. 33 U.S.C. §1311(a). Section 402 of the Clean Water Act provides one way in
which a discharge may be deemed lawful. The Environmental Protection Agency may issue a
National Pollutant Discharge Elimination System (NPDES) permit “for the discharge of any
pollutant . . . upon condition that such discharge will meet . . . all such requirements . . .
necessary to carry out the provisions of [the CWA].” 33 U.S.C. §1342(a)(1). The EPA may
13
delegate permitting authority for discharges to the States and any permit issued will include
specific conditions necessary to ensure the permit holder’s compliance with the requirements of
§1342(a)(1), including water quality standards, established under the Clean Water Act. 33 U.S.C.
§1342(a)(2).
Pursuant to the Clean Water Act, states maintain the primary role in establishing
conditions or additional requirements under which discharges may occur within the states’
waters. Section 401 of the CWA states that any applicant applying for a discharge permit must
provide to the federal licensing agency “a certification from the State in which the discharge
originates or will originate . . . that any such discharge will comply with the applicable
provisions [of the CWA].” 33 U.S.C. §1341(a)(1). Further, the state must also provide in the
certification “any applicable effluent limitations . . . [or] standard” necessary to ensure
compliance with the CWA and “any other appropriate requirement of State law” established in
the certification. §1341(d). Finally, these limitations “shall become a condition” on any approved
federal permit, (id. §1341(d)), and no “permit shall be granted if certification has been denied by
the State . . . .” id. §1341(a).
The EPA was required to include the conditions requiring closure and remediation of
the coal ash pond as provided by the State of Progress, without regard to their consistency to
§401(d). The EPA may only (1) incorporate conditions in full or deny the entire application,
or (2) challenge the conditions in the appropriate state court forum. Am. Rivers, Inc. v.
F.E.R.C., 129 F.3d 99 (2d Cir. 1997). Should this Court find the conditions reviewable in the
present case, the conditions are considered “appropriate requirements of State law” under
§401, but they independently violate the Clean Water Act, section 404.
14
A. States have the primary authority in issuing conditions attached to federal permits
and the EPA has no authority to individually review their consistency with CWA
§401(d).
State certifications are essential to the permitting process as outlined above, and this
power preserves state authority to “address the broad range of pollution” that occurs within a
state’s borders. S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 386 (2006). The
Clean Water Act provides a limitation on a broad federal power of licensing by imposing state
certification requirements. State certification under the CWA is “set up as the exclusive
prerogative of the state and is not to be reviewed by any agency of the federal government.” 33
U.S.C. § 1371(c)(2). See Lake Erie All. for Prot. of Coastal Corridor v. U. S. Army Corps of
Eng'rs, 526 F. Supp. 1063, 1074 (W.D. Pa. 1981); Mobil Oil Corp. v. Kelley, 426 F. Supp. 230,
234-235 (E.D.Ala.1976). The EPA has no jurisdiction to individually review any Progress
certification conditions.
The EPA does not have authority to alter or reject state certification conditions. Lake
Carriers’ Ass’n v. E.P.A., 652 F.3d 1 (D.C. Cir. 2011). Petitioners in Lake Carriers challenged
the incorporation of state permit conditions into the federal discharge permit licensed by the
EPA. Lake Carriers’, 652 F.3d at 3. The EPA published a draft permit that did not include the
conditions established by several states affected by the incidental discharge of shipping vessels.
Id. at 4. The EPA acknowledged, in response to comments, that “the statute required
certifications by the states . . . and mandated that EPA attach to the permit any conditions the
states deemed necessary to meet their specific water quality standards.” Id. at 5, emphasis added.
From this, the EPA concluded, “it could neither evade the certification process nor alter
certification conditions imposed by the states.” Id. at 5. The Court held the petitioners failed to
demonstrate the EPA had power to amend or reject the state certifications (id. at 6), and upheld
15
the EPA’s adherence to the statute by not considering the permit conditions of twenty-five states,
two tribes, and one territory. Id. at 5.
Further, EPA has no authority to ignore State certifications or determine whether
limitations are appropriately more stringent than necessary. Roosevelt Campobello Int’l Park
Com. v. United States E.P.A., 684 F.2d 1041, 1056 (1st Cir. 1982). Petitioners in Roosevelt filed
suit against the EPA, challenging the authorization of a NPDES permit issued in accordance to
construction of an oil refinery. Roosevelt, 684 F.2d at 1044. After consultation and required
comment periods, the ALJ, in an adjudicatory hearing, authorized the issuance of the NPDES
permit without conditions established by the Maine Board of Environmental Protection and
supplemental Environmental Impact Study. Id. at 1045. The Court held the ALJ lacked authority
to exclude the previously established state conditions from the federal permit, and therefore, the
conditions must be included. Id. at 1057. The Court found the NPDES permitting process does
not authorize any Federal agency the power “to review any effluent limitation or other
requirement established pursuant to [the CWA] or the adequacy of any certification under
section 401 of [the CWA]. Id. at 1056, emphasis added; 33 U.S.C. §1371(c)(2)(A); see also S.D.
Warren, 547 U.S. 370 (2006).
The conditions mandated by the State of Progress regarding the closure and remediation
of the coal ash pond were properly included in the Final Permit. As stated in Roosevelt, no
federal agency has the reviewing power to exclude conditions promulgated by the State on a
finding of inadequacy under section 401 of the CWA. Roosevelt, 684 F.2d 1056. Nor does the
EPA have the power to individually amend or reject the conditions established by the State as
necessary to meet a State’s water quality standards. See Lake Carriers, 652 F.3d 1.
16
Congressional intent surrounding State authority to issue conditions regarding discharge
permits, supports the conclusion that the requirements as a condition for the closure of the coal
ash treatment pond issued by the State of Progress should be included in the final permit issued
by the EPA. Congressional intent surrounding the CWA demonstrates an expansion of federal
oversight of projects affecting the navigable waters of the United States, while also reinforcing
the role of the States as the “prime bulwark in the effort to abate water pollution.” Alcoa Power
Generating Inc. v. F.E.R.C., 643 F.3d 963 (D.C. Cir. 2011), quoting Keating v. FERC, 927 F.2d
616, 622 (D.C. Cir. 1991); quoting United States v. Puerto Rico, 721 F.2d 832, 838 (1st Cir.
1983). The certification authority granted to the states is “’[o]ne of the primary mechanisms’
through which [the States] may exercise this role . . .” Aloca, 643 F.3d at 971, citing Keating 927
F.2d 616. 33 U.S.C. §1251(b) states “[i]t is the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of States to prevent, reduce, and eliminate
pollution,” within the States’ own boundaries. 33 U.S.C. §1251(b).
The notion of State authority regarding §401 conditions is widely accepted throughout
the circuits when finding other federal agencies, to whom licensing power was delegated by the
EPA, are also unable to review State-promulgated conditions. Where EPA is entitled to
deference under the Chevron doctrine, the Federal Energy Regulatory Commission is not, (see
Chevron), because the EPA is charged with administering the statute. Alabama Rivers All. v.
F.E.R.C., 325 F.3d 290, 297 (D.C. Cir. 2003); citing 33 U.S.C. §1251(d) (“Except as otherwise
expressly provided in this chapter, the Administer of the Environmental Protection Agency . . .
shall administer this chapter.”). By allowing the EPA to delegate licensing power, Congress still
intended for States to continue playing the primary role in “determining what conditions would
be included in the license in order to protect the resources under their respective jurisdictions.”
17
Escondido Mut. Water Co. v. La Jolla, Rincon, San Pasqual, Pauma, & Pala Bands of Mission
Indians, 466 U.S. 765, 755 (1984), ("While Congress intended that the Commission would have
exclusive authority to issue all licenses, it wanted the individual Secretaries [i.e., the Secretaries
of the Interior, War and Agriculture] to continue to play the major role in determining what
conditions would be included in the license in order to protect the resources under their
respective jurisdictions.").With such support, the State of Progress clearly has the authority to
include conditions with the certification required for the federal permit; the EPA is required to
include all such Progress certifications in the Final Permit without reviewing their consistency
with CWA §401(d).
Finally, should the EPA or other federal agency find the conditions promulgated by the
State to be an undue extension of the State’s authority, the agency may either (1) refuse to issue
the license in its entirety, or (2) challenge the certification in state courts, under appropriate state
law. Am. Rivers, Inc. v. F.E.R.C., 129 F.3d 99, 112 (2d Cir. 1997). In American Rivers, FERC
feared that allowing the State full authority in certifying conditions on the license application
would “hold the Commission hostage through §401 process.” Am Rivers. 129 F.3d 99 at 112.
However, the Court held that “absent a challenge by the applicant-licensee . . . conditions must
either be incorporated in full . . . or the [licensor] must deny the license altogether.” Id. at 100;
citing Keating v. FERC, 927 F.2d 616, 622; see S.D. Warren 547 U.S. 370; see also Aloca, 643
F.3d 963. Further, courts have generally found a State’s decision regarding applying conditions
to a section 401 certification “reviewable only in State court, because . . . section 401 results in
most challenges to a certification decision implicating only questions of State law.” Aloca, 643
F.3d at 971; see City of Tacoma, Wash. v. FERC, 460 F.3d 53, 67 (D.C. Cir. 2006).
18
B. Conditions constitute an “appropriate requirement of State Law” but they
independently violate the Clean Water Act Section 404.
States may impose conditions necessary to ensure an applicant’s compliance with various
provisions of the Act and “appropriate requirement[s] of State law.” PUD No. 1 of Jefferson Cty.
v. Washington Dep't of Ecology, 511 U.S. 700, 711 (1994); 33 U.S.C §1341(d). Petitioners in
PUD challenged the issuance of a minimum streamflow requirement as unrelated, based on
section 401 of the CWA, to their federal discharge permit. PUD 511 U.S 700 at 709, 711. The
Court held the minimum flow requirement was a permissible condition of a 401 certification. Id.
at 711-712. The court looked to language in section 401(d) as an expansion of State authority to
impose conditions on the certification of a project. Id. at 711. The Supreme Court upheld EPA
determination that states may condition certification “upon any limitations necessary to insure
compliance with state water quality standards or any other appropriate requirement of state law.”
Id. at 713; 33 U.S.C. §1341(d). The Court reasoned that limitations applied to the compliance of
the applicant, not solely the discharge and limitations permitted by the criteria of 401(d). Id. at
727.
The Supreme Court has included “reopener” conditions (i.e. reserving, to the State, the
option to reconsider the permit after an allotted time period) within the definition of
“appropriate” state issued conditions as a precaution if the conditions were not sufficient to
ensure compliance with established standards. S.D. Warren Co. v. Bd. of Envtl. Prot., 868 A.2d
210, 218 (2005); aff'd on other grounds sub nom., 547 U.S. 370 (2006). These reopeners and the
requirements for the ash pond closure in the State of Progress, build on the original allocation of
the minimum streamflow requirement in PUD. However, a determination of appropriateness
within a States’ conditioning power does not render the conditions all-powerful. A National
Pollutant Discharge System permit, shall only be granted “for the discharge of any pollutant . . .
19
upon condition that such discharge will meet . . . all such requirements . . . necessary to carry out
the provisions of [the CWA].” 33 U.S.C. §1342(a)(1), emphasis added. The requirements for the
closure of the ash pond independently violate the Clean Water Act, section 404 requirement for a
dredge and fill permit.1
The issuance of a permit that conflicts with the requirements of another section of the
CWA is an undue action by the EPA. See American Rivers 129 F.3d 99. The conditions
requiring closure and remediation of the coal ash pond as provided by the State of Progress were
properly included in the Final Permit and constitute appropriate requirement of State law.
However, the EPA has failed to require a CWA section 404 fill and dredge permit by which
EnerProg should comply.
II. THE EPA ADMINISTRATOR’S NOTICE SUSPENDING FUTURE
COMPLIANCE DEADLINES FOR THE 2015 EFFLUENT LIMITATION
GUIDELINES IS NOT EFFECTIVE TO SUSPEND THE ZERO DISCHARGE
OF COAL ASH TRANSPORT WATERS WITHOUT BEING SUBJECT TO
THE NOTICE AND COMMENT REQUIREMENT OF APA § 553.
The EPA Administrator’s invocation of § 705 of the Administrative Procedure Act,
through his notice suspending the 2015 Final Effluent Limitation Guidelines for the Steam
Electric Power Generating Industry, is not sufficient to require suspension of the NPDES permit
compliance deadlines for achieving zero discharge of coal ash transport water. Suspension of
compliance dates of a final rule that has already passed the effective date is the equivalent of
rulemaking, and therefore subject to § 553 of the Administrative Procedure Act. See
Environmental Defense Fund v. Gorsuch, 713 F.2d 802, 815 (D.C. Cir. 1983).
1 See Issue V for a further discussion of the need for a Section 404 Dredge and Fill permit pursuant to 33 U.S.C.
§1344.
20
Section 553 of the Administrative Procedure Act requires that any substantive
rulemaking must be subject to a notice and comment period before implementation. 5 U.S.C.S. §
553. Several circuits have interpreted the suspension or delay of a final rule to be tantamount to
substantive rulemaking. See Consumer Energy Council v. Federal Energy Regulatory Com., 673
F.2d 425, 446 (D.C. Cir. 1982); NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004) (“altering the
effective date of a duly promulgated standard could be, in substance, tantamount to the
amendment or rescission of the [rule]”); see also Public Citizen v. Steed, 733 F.2d 93, 98 (D.C.
Cir. 1984) (holding suspension of agency rule was equivalent to revocation and reversal of
agency’s prior course); NRDC v. EPA, 683 F.2d 752, 762 (3d Cir. 1982) (“agency could . . .
repeal a rule simply by eliminating (or indefinitely postponing) its effective date, thereby
accomplishing something for which the statute requires a rulemaking proceeding.”). In
Environmental Defense Fund v. Gorsuch, the Court stated that “[t]he application of APA
rulemaking requirements to an agency action depends on ‘whether the agency action jeopardizes
the rights and interests of parties, for if it does, it must be subject to public comment prior to
taking effect.’” 713 F.2d at 815 (quoting Batterton v. Marshall, 648 F.2d 694, 708 (D.C. Cir.
1980)). Furthermore, “[s]crutiny of a claimed exemption should be exacting where an agency
seeks, as EPA does here, to ‘undo all it accomplished through its rulemaking without giving all
parties an opportunity to comment on the wisdom of repeal.’” 713 F.2d at 817 (quoting
Consumer Energy Council v. Federal Energy Regulatory Com., 673 F.2d 425 (D.C. Cir. 1982)).
In Gorsuch, the EPA deferred processing permits related to the Resource Conservation
and Recovery Act. 713 F.2d at 804. The EPA asserted that it was exempt from the notice and
comment requirement under APA § 553 because the deferral was a general policy statement. Id.
at 817. Contrary to the EPA’s assertion, the court held that the statement did have an effect on
21
the rights and interests of the parties because such an action relieved the industry from
compliance with the prescribed obligations of the regulation, as well as affecting the general
public by depriving them of the safety the regulation provided. Id. Thus, the court held that the
deferral was the equivalent of suspending the regulation, and therefore was in violation of the
APA without notice or comment. Id.
The EPA Administrator’s notice suspending the compliance dates of the 2015 Effluent
Limitation Guidelines (ELGs) at issue in the present action cannot be upheld in the absence of
the notice and comment requirement. Before the 2015 ELGs were promulgated, they were
subject to the notice and comment requirement. After this requirement was fulfilled, the rule
became law on January 4, 2016. Contained within the promulgated rule is the November 1, 2018
compliance date. On April 12, 2017, well over a year after the effective date of the 2015 ELGs,
the EPA Administrator issued the notice that EnerProg purports postpones the upcoming
compliance date of November 1, 2018. Similar to Gorsuch, heightened scrutiny should be
applied in the current action due to the EPA’s attempt to reverse its course on a rule that had
already been promulgated. Id. This Court stated in Clean Air Council v. Pruitt that agencies
“have broad discretion to reconsider a regulation at any time. To do so, however, they must
comply with the [APA].” 862 F.3d 1, 8-9 (D.C. Cir. 2017). The Court further stated that "an
agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked"
and "may not alter [such a rule] without notice and comment." Id. at 9 (quoting Nat’l Family
Planning and Reproductive Health Ass’n, Inc. v. Sullivan, 979 F.2d 227, 234 (D.C. Cir. 1992)).
Postponing the compliance deadlines would affect both EnerProg, by relieving them of
the obligation to bring MEGs within compliance set forth in the NPDES permit, as well as the
general public by depriving them of the benefits of a reduced likelihood of pollution discharge
22
into Fossil Creek and thus the Progress River. Due to the impact to both EnerProg and the
citizens of Progress, postponing the compliance deadline constitutes rulemaking, and is therefore
subject to the notice and comment requirement of the APA.
The only exception to § 553 of the APA of value to EnerProg and the EPA is the “good
cause” exception. 5 U.S.C.S. § 553(b)(3)(B). The exception applies when the agency “finds (and
incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice
and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
Id. The court in Council of Southern Mountains, Inc. v. Donovan stated that “circumstances
justifying reliance on [the good cause] exception” are rare. 653 F.2d 573, 580 (D.C. Cir. 1981).
The previous statement is readily apparent in Consumer Energy Council v. FERC, where the
court dismissed FERC’s claim that notice and comment were not necessary to revoke a
regulation that was defectively promulgated. 673 F.2d at 448. The court held that exceptions
should only be used in emergency situations, and the defective promulgation of a regulation was
not adequate to constitute an emergency situation requiring exception. Id. In the present action,
EnerProg has not argued the presence of an emergency, nor has it even argued that meeting the
compliance deadline would be infeasible. (R. at 11). Similarly, the EPA has offered no evidence
indicating the presence of an emergency situation other than the ambiguous statement that “far-
ranging issues contained in the reconsideration petitions” require review of the rule. See 82 FR
19005 (Apr. 25, 2017). Absent any evidence that good cause exists for dispensing with the notice
and comment requirement, such an exception cannot be afforded in the present action.
Due to the aforementioned reasons, the EPA Administrator’s Notice is not effective to
suspend the future compliance dates for the zero discharge of coal ash transport waters contained
in EnerProg’s NPDES permit. Since the postponement is the equivalent of rulemaking, and the
23
action jeopardizes the rights and interests of the parties as well as the public, it is therefore
subject to the notice and comment requirement of § 553 of the APA. Absent any notice and
comment period, the postponement of the compliance dates cannot be applied.
III. THE EPA’S RELIANCE ON BEST PROFESSIONAL JUDGMENT
REQUIRING ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES IS
JUSTIFIED REGARDLESS OF THE 2015 EFFLUENT LIMITATION
GUIDELINES.
The EPA’s assertion that it can rely on Best Professional Judgment (BPJ) to require zero
discharge of coal ash transport wastes is justified. The permit writer’s authority to use BPJ on a
case-by-case basis is derived from § 1342 of the Clean Water Act, which states “. . . the
administrator may . . . issue a permit for the discharge of any pollutant, or combination of
pollutants . . . upon condition that such discharge will meet . . . such conditions as the
Administrator determines are necessary to carry out the provisions of this Act.” 33 U.S.C.S. §
1342(a)(1)(B).
The criteria and standards for imposing technology-based treatment requirements on a
case-by-case basis are outlined in 40 CFR § 125.3(c). Section 125(c)(3) states: “[w]here
promulgated effluent limitations guidelines only apply to certain aspects of the discharger's
operation, or to certain pollutants, other aspects or activities are subject to regulation on a case-
by-case basis in order to carry out the provisions of the Act.” Id. The requirements a permit
writer must consider when establishing case-by-case limitations for best available technology are
found in § 125.3(d)(3), which include: (1) the age of equipment and facilities involved; (2) the
process employed; (3) The engineering aspects of the application of various types of control
techniques; (4) process changes; (5) the cost of achieving such effluent reduction; and (6) non-
water quality environmental impact (including energy requirements). 40 CFR § 125.3(d)(3).
24
Relevant case law from the D.C. and other circuits supports the use of BPJ on a case-by-case
basis in the absence of national effluent limitation guidelines. See NRDC v. U.S. EPA, 859 F.2d
156, 187 (D.C. Cir. 1988) (“section 1342(a) allows EPA to approve permits in the absence of
effluent limitations guidelines based on a best professional judgment standard.”); NRDC v. U.S.
EPA, 822 F.2d 104, 111 (D.C. Cir. 1987) (holding in absence of national standards, permit writer
is authorized to use BPJ); Texas Oil & Gas Assoc’n v. U.S. EPA 161 F.3d 923, 929 (5th Cir.
1998) (permit issued using BPJ required zero discharge of pollutant that had no national ELG).
Furthermore, the EPA’s NPDES Permit Writer’s Manual also includes language indicating the
use of BPJ to establish case-by-case limitations. EPA, NPDES Permit Writer’s Manual (Sept.
2010), https://www.epa.gov/sites/production/files/2015-09/documents/pwm_2010.pdf.
In determining BPJ, the permit writer must consider “the available technologies, costs in
relation to effluent reduction benefits, engineering aspects of various control techniques,
available best management practices, and non-water-quality environmental impacts.” Catskill
Mts. Chapter of Trout Unlimited v. City of New York, 451 F.3d 77, 85 (2d Cir. 2006). In Catskill,
a citizen suit was brought against the City of New York for pollution discharges from the
Shandaken Tunnel into a navigable water. Id. at 79. The plaintiff alleged that the discharge
required a permit under the CWA. Id. The defendant argued that such a permit would require
them to stop the discharge entirely, which the defendant claimed was infeasible. Id. at 85. The
court disagreed with the defendant’s argument, and stated that in the absence of national
technology-based effluent limitations, the permit writer could rely on best professional judgment
to set such limits. Id. In establishing these limits, the permit writer had “considerable flexibility”
to set the conditions of the permit. Id.
25
In the present case, the Region XII EPA permit writer used Best Professional Judgment
to require zero discharge of ash transport pollutants. (R. at 2). In exercising best professional
judgment, the permit writer determined that the zero-discharge requirement by November 1,
2018 is the best available technology for coal ash waste discharges. (R. at 9). In reaching this
determination, the permit writer noted that dry handling of ash wastes has been employed in the
industry for “many years.” (R. at 9). It can be inferred that since such a practice is already widely
in use it would not be technologically infeasible or overly burdensome for EnerProg to bring the
MEGS within compliance. Furthermore, compliance is still sufficiently far enough in the future
for EnerProg to begin making the appropriate modifications to the MEGS. The Region XII
permit writer also noted that the MEGS’s profits are sufficient to comply with the zero discharge
requirement, and would require only a modest twelve cents per month increase to consumers’
electric bills. (R. at 9). While such an increase could be argued to unnecessarily burden
consumers, such consumers would be receiving value added back by the positive effects such
compliance would have on the water quality of Fossil Creek and the Progress River in general.
For the aforementioned reasons, the EPA Region XII permit writer was completely
justified in relying on BPJ when requiring zero discharge for ash treatment wastes. Since the
writer considered the requirements outlined for the best available technology determination, the
limitations were appropriately considered under the case-by-case basis. Since § 1342(a) of the
CWA gives the EPA the ability to create limitations based on BPJ, the limitations are appropriate
even in the absence of the 2015 ELGs.
26
IV. THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
PERMITTING REQUIREMENTS APPLY TO ENERPROG’S POLLUTANT
DISCHARGES INTO THE MOUTARD ELECTRIC GENERATING
STATION’S ASH POND BECAUSE THESE DISCHARGES INTO THE ASH
POND ARE SUBJECT TO EFFLUENT LIMITS.
The discharges from outfall 008 to the coal ash pond should be considered direct
discharges into a water of the United States, because the coal ash pond was created by “the
impoundment of [a] water[] of the United States.” 40 C.F.R. 122.2(2)(i) (2015). Therefore,
these discharges into the coal ash pond are subject to effluent limitations under 33 U.S.C. §§
1311 and 1342. Effluent Limitations, 33 U.S.C. §§ 1311; National Pollutant Discharge
Elimination System, 33 U.S.C. §§ 1342 (2014).
The Clean Water Act (CWA) regulates the discharge of pollutants into the waters of the
United States. 33 U.S.C. §§ et. seq. (1981). “Waters of the United States” are broadly defined in
40 C.F.R. § 122.2(1)(iv) as “[a]ll impoundments of waters otherwise identified as waters of the
United States under this section.”2 40 C.F.R. § 122.2(1)(iv). This statute further provides that
“[w]aste treatment systems” are “not ‘waters of the United States,’ even where they otherwise
meet the terms of paragraph[] (1)(iv) . . .” Id. at § 122.2(2)(i). Therefore, upon initial reading of
this statute, it appears as though outfall 008 is an internal discharge and does not require a permit
under 33 U.S.C. § 1342.
But, despite this exclusion, § 122.2 still applies to the present case because § 122.2(2)(i)
further provides: “[t]his 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(2)(i). (Hereinafter,
this key sentence of 40 C.F.R. § 122.2(2)(i) will be referred to as the “Provision.”) Therefore,
2 See part V, where this discussion defines the definition of “waters of the United States” in greater detail.
27
under this Provision, a waste treatment system formed out of a water of the United States is still
subject to the effluent limitations and permitting requirements of 33 U.S.C. §§ 1311 and 1342.
After this key Provision, 40 C.F.R. § 122.2(2)(i) references “Note 1 of this section.”
“Note 1” describes three Federal Regulations that were published to address this Provision: 45
Fed. Reg. 48,620, 48 Fed. Reg. 14,163, and 80 Fed. Reg. 37,114. Consolidated Permit
Regulations, 45 Fed. Reg. 48,620 (July 21, 1980); Index of Changes to Parts 122 and 123, 48
Fed. Reg. 14,163 (April 1, 1983); EPA Administered Permit Programs: The National Pollutant
Discharge Elimination System, 80 Fed. Reg. 37,114 (June 29, 2015). These Regulations attempt
to suspend this key Provision. However, the Regulations cited in “Note 1” do not follow the rule
making requirements of 5 U.S.C. § 553 and are therefore unable to suspend this key Provision.
The Provision of 40 C.F.R. § 122.2(2)(i) should apply in the present case because the
Regulations attempting to suspend it are in violation of 5 U.S.C. § 553, and because this
Provision is still in use by another circuit court.
A. The key Provision of 40 C.F.R. § 122.2(2)(i) should apply in the present case
because the Federal Regulations attempting to suspend it are in violation of 5
U.S.C. § 553.
The regulations attempting to suspend the key Provision of 40 C.F.R. § 122.2(2)(i)
violate 5 U.S.C. § 553.
When an agency provides a proposed rule, it must “provide notice of proposed
rulemaking,” containing “either the terms or substance of the proposed rule or description of the
subject and issues involved.” Rule Making, 5 U.S.C. § 553(b). After such notice, “the agency
shall give interested persons an opportunity to participate in the rulemaking through submission
of written data, views, or arguments with or without opportunity for oral presentation.” Id. at §
553(c).
28
When a court determines the sufficiency of such notice, it asks “whether the purposes of
notice and comment have been adequately served.” Prometheus Radio Project v. FCC, 652 F.3d
431, 449 (3d Cir. 2011) (citing Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir.
1994)). Such purposes are “(1) to ensure that the agency regulations are tested via exposure to
diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties
an opportunity to develop evidence in the record to support their objections to the rule and
thereby enhance the quality of judicial review.” Prometheus, 652 F.3d at 449 (quoting Int’l
Union, United Marine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250, 1259
(D.C. Cir. 2005). To achieve these purposes, “[A]n agency proposing informal rulemaking has
an obligation to make its views known to the public in a concrete and focused form so as to make
criticism or formulation of alternatives possible.” Prometheus, 652 F.3d at 449 (quoting Home
Box Office v. FCC, 567 F.2d 9, 35-36 (D.C. Cir. 1977)).
Here, 45 Fed. Reg. 48,620, 48 Fed. Reg. 14,163, and 80 Fed. Reg. 37,114 from Note 1 of
40 CFR § 122.2 violate 5 U.S.C. § 553 in light of the standards provided by this Honorable
Court. Therefore, this Court should hold EnerProg’s coal ash pond waste treatment system as
discharging into a water of the United States and thus subject to effluent emission permitting
requirements as per 33 U.S.C. §§ 1311 and 1342.
i. Federal Regulations 45 Fed. Reg. 48,620 and 48 Fed. Reg. 14,153 are unable to
suspend the Provision of 40 CFR § 122.2(2)(i) because they fail to follow the rule
making requirements of 5 U.S.C. § 553.
Federal Regulations 45 Fed. Reg. 48,620 and 48 Fed. Reg. 14,153 fail to follow the
requirements of 5 U.S.C. § 553, and are therefore unable to suspend the Provision of 40 C.F.R. §
122.2(2)(i).
29
When an agency provides a proposed rule, it must “provide notice of proposed
rulemaking,” containing “either the terms or substance of the proposed rule or description of the
subject and issues involved.” 5 U.S.C. § 553(b). To determine the sufficiency of such notice,
the reviewing court must determine “whether the purposes of notice and comment have been
adequately served.” Prometheus, 652 F.3d at 449 (citing Am. Water Works, 40 F.3d at 1274.
One of those purposes is “to ensure fairness to affected parties.” Prometheus, 652 F.3d at 449
(quoting United Marine Workers, 407 F.3d at 1259. To achieve these purposes, “[A]n agency
proposing informal rulemaking has an obligation to make its views known to the public in a
concrete and focused form so as to make criticism or formulation of alternatives possible.”
Prometheus, 652 F.3d at 449 (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C.
Cir. 1977) (emphasis added).
Here, 45 Fed. Reg. 48,620 “suspended [the Provision] until further notice.” However, it
also said the EPA “intends promptly to develop a revised edition . . . [so as to] amend the rule, or
terminate the suspension.” 45 Fed. Reg. 48,620 (emphasis added). This Regulation promised
the EPA would “promptly” produce a new edition of the rule, yet it took three years to come out
with an update on the status of the Provision. 48 Fed. Reg. 14,153. Furthermore, it has now
been over thirty-five years since the publication of this Regulation and the EPA has yet to
provide the promised “revised edition of the rule.” Therefore, Federal Regulation 45 Fed. Reg.
48,620 failed to “ensure fairness to affected parties” and provide a “concrete and focused form”
to the public because it promised something the EPA did not produce. Because the Regulation
did not “promptly” produce the promised “revised edition,” it thus did not “ensure fairness to
affected parties” and violated the rule making requirements of 5 U.S.C. § 553. Because 45 Fed.
Reg. 48,620 violated 5 U.S.C. § 553 for a failure to satisfy one of the purposes of notice, United
30
Marine Workers, 407 F.3d at 1259, it is therefore unable to suspend the Provision of 40 C.F.R. §
122.2(2)(i). See Home Box Office, 567 F.2d 9; see also Marine Workers of Am, 407 F.3d 1250;
Am. Water Works, 40 F.3d 1266.
Here, 48 Fed. Reg. 14,153 is also in violation of 5 U.S.C. § 553. This Regulation
continued 45 Fed. Reg. 48,620’s suspension of the Provision. However, the continuance of the
suspension was in violation of the language of 45 Fed. Reg. 48,620 because 45 Fed. Reg. 48,620
did not provide for a continuance. Instead of allowing a continuance, 45 Fed. Reg. 48,620 said
the EPA would either “amend the rule, or terminate the suspension.” 45 Fed. Reg. 48,620
(emphasis added). However, 48 Fed. Reg. 14,153 “continue[d] that suspension,” 48 Fed. Reg.
14,153, rather than “amend[ing]” or “terminat[ing]” the suspension. Therefore, because 48 Fed.
Reg. 14,153 failed to follow the standard set forth by 45 Fed. Reg. 48,620, it thus did not “ensure
fairness to affected parties,” which is one of the purposes of the notice requirement of 5 U.S.C. §
553. Because 48 Fed. Reg. 14,153 violated the notice requirement of 5 U.S.C. § 553, it is
therefore unable to suspend the language of the Provision of 40 C.F.R. § 122.2(2)(i).
ii. Federal Regulation 80 Fed. Reg. 37,114 is unable to suspend the Provision of 40 CFR
§ 122.2(2)(i) because it fails to follow the rule making requirements of 5 U.S.C. §
553.
Federal Regulation 80 Fed. Reg. 37,114 fails to follow the requirements of 5 U.S.C. §
553 and is therefore unable to suspend the Provision of 40 C.F.R. § 122.2(2)(i).
When an agency provides a proposed rule, it has an obligation to make its views known
to the public in a concrete and focused form so as to make criticism or formulation of
alternatives possible.” Prometheus, 652 F.3d at 449 (quoting Home Box Office, v. FCC, 567
F.2d 9, 35-36 (D.C. Cir. 1977) (emphasis added).
31
Here, 80 Fed. Reg. 37,114(a) removed the suspension of the Provision, and then in part
(c) proceeded to continue the very same suspension that it had just lifted in part (a). 80 Fed. Reg.
37,114(a), (c). It is likely this Regulation moved to “lift[] the suspension” in part (a) so it would
be in compliance with the promise of 45 Fed. Reg. 48,620 that said the EPA would “amend the
rule, or terminate the suspension.” 45 Fed. Reg. 48,620 (emphasis added). This Regulation kept
with the promise from 45 Fed. Reg. 48,620 when it terminated (“lift[ed]”) the suspension. 80
Fed. Reg. 37,114(a). However, this Regulation nevertheless violated 5 U.S.C. § 553 because it
did not provide a “concrete and focused form” of a “revised edition.”
For example, instead of providing a revised edition of the Provision at issue, 80 Fed. Reg.
37,114 effectively terminated the suspension of 45 Fed. Reg. 48,260 and then immediately re-
instated the exact same suspension right after its termination. This termination and reinstatement
combination is in violation of the requirement that an agency “make its views known to the
public in a concrete and focused form,” Prometheus, 652 F.3d at 449 (quoting Home Box Office,
v. FCC, 567 F.2d 9, 35-36 (D.C. Cir. 1977) (emphasis added), because the EPA did not present
the information in a “concrete and focused form.” Because the internal inconsistency in the
language of the Regulation fails to meet the “concrete and focused” standard, therefore this
Regulations is ineffective in its attempt to suspend the Provision.
This Regulation also violates the standard put forth by the Home Box Office Court when
it provides that the new “revision reads as follows” and provides the exact same Provision as that
of the original in 40 C.F.R. § 122.2(2)(i). Again, this violates the “concrete and focused form”
standard because this Regulation indicates that it has implemented changes to the existing law,
but proceeds to keep the law regarding this issue exactly the same as it did before this Regulation
was published. Because the Regulation purports to provide a new standard yet fails to do so, it
32
therefore is unclear and fails to comply with the rule making requirements of 5 U.S.C. § 553.
See Home Box Office, 567 F.2d 9; see also Marine Workers of Am, 407 F.3d 1250; Am. Water
Works, 40 F.3d 1266. Because 80 Fed. Reg. 37,114 fails to comply with 5 U.S.C. § 553, it
therefore is unable to suspend the Provision of 40 C.F.R. § 122.2(2)(i).
Therefore, because 45 Fed. Reg. 48,620, 48 Fed. Reg. 14,153, and 80 Fed. Reg. 37,114
failed to properly suspend the key Provision of 40 C.F.R. § 122.2(2)(i), it is applicable to the
present case. Because this Provision is applicable to the present case, EnerProg’s waste
treatment system is subject to the effluent limitations of 33 U.S.C. §§ 1311 and 1342.
B. The key Provision of 40 C.F.R. § 122.2(2)(i) should apply in the present case
because it has been applied by another circuit court.
The Provision of 40 C.F.R. § 122.2(2)(i) should apply in the present case because it has
been used before, even after the publication of the initial suspension in Regulation 45 Fed. Reg.
48,620.
In United States v. TGR Corp., TGR deposited waste material into water that it argued
was part of a “waste treatment system,” and thus excluded from being a water of the United
States under the CWA. Unites States v. TGR Corp., 171 F.3d 762, 763 (2d Cir. 1999). The
Second Circuit held this argument unpersuasive, reasoning that under § 122.2(2)(i), the water in
which the waste was deposited “clearly cannot be considered a waste treatment system” because
the supposed waste treatment system was formed out of a water of the United States. Id. at 765.
Here, this Honorable Court should follow the holding and rationale of this persuasive
decision. The coal ash pond was created by “damming the then free-flowing upper reach of
Fossil Creek,” r. at 7, and therefore is a waste treatment system like that of the one in TGR.
Thus, the TGR decision is highly persuasive to the present case. Additionally, the TGR decision
has has been cited many times without being called into question. Therefore, this Honorable
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Court should follow the rationale of TGR and hold that the key Provision of 40 C.F.R. §
122.2(2)(i) still applies.
Therefore, because the key Provision of 40 C.F.R. § 122.2(2)(i) has persuasively been
applied by another circuit court, it is applicable to the present case. Because this Provision is
applicable to the present case, EnerProg’s waste treatment system is subject to the effluent
limitations of 33 U.S.C. §§ 1311 and 1342.
V. ONCE CLOSED, THE CLOSED COAL ASH POND WILL NO LONGER
QUALIFY AS A WASTE TREATMENT SYSTEM AND THEREFORE IS
SUBJECT TO THE PERMITTING REQUIREMENTS OF 33 U.S.C. § 1344.
The ash pond closure and capping plan requires a permit under 33 U.S.C. § 1344 because
the closed coal ash pond would constitute the discharge of fill material into a water of the United
States. “Any discharge of dredged or fill material into the navigable waters . . . shall be required
to have a permit . . .” Permits for Dredged or Fill Material, 33 U.S.C. § 1344(f)(2) (1987).
“[F]ill material” is defined in 33 C.F.R. § 323.2 as any material placed in a water of the United
States that has the effect of: (i) replacing any portion of a water of the United States with dry
land; or (ii) changing the bottom elevation of any portion of a water of the United States. 33
C.F.R. § 323.2 (2008). Therefore, material placed into a water of the United States which has
the effect of replacing a portion of a “water of the United States” or which changes the bottom
elevation of a portion of a “water of the United States” is subject to permitting under 33 U.S.C. §
1344(f)(2).
Here, the first step to determine whether the closure and capping plan requires a permit
under 33 U.S.C. § 1344 is to evaluate whether the former ash pond would be within a “water of
the United States.” Next, this Court must determine whether the closure and capping plan would
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turn the coal ash pond into “fill material.” This analysis will reveal the coal ash pond closure
and capping plan to be a discharge of fill material into a water of the United States.
A. The closed and capped coal ash pond would be within a “water of the United States”
and is therefore subject to the permitting requirements of 33 U.S.C. § 1344.
Once the coal ash pond is closed and capped, it will be within a “water of the United
States” and is therefore subject to the permitting requirements of 33 U.S.C. § 1344.
In the unanimous United States Supreme Court decision of United States v. Riverside
Bayview Homes, the Court considered “the proper interpretation of . . . waters of the United
States . . .” United States v. Riverside Bayview Homes, 474 U.S. 121, 126 (U.S. 1985) (internal
quotations omitted). The Court held “waters of the United States” to include not just navigable
waters, but also “tributaries of such waters, interstate waters and their tributaries, and
nonnavigable intrastate waters . . .” Id. at 123 (citing 40 Fed. Reg. 31,320 (1975)). The
Riverside Court further held that 33 U.S.C. § 1344 must include “any adjacent wetlands that
form the border of or are in reasonable proximity to other waters of the United States, as [those]
wetlands are part of [the] aquatic ecosystem.” Riverside, 474 U.S. 121 at 134. Therefore,
“adjacent wetlands may be defined as waters under [33 U.S.C. § 1344].” Id.
Furthermore, the Riverside Court pointed out that Congress “chose to define the waters
covered by [33 U.S.C. § 1344] broadly.” Id. at 133. The Riverside Court reasoned that under
this broad interpretation, Congress intended to regulate at least some waters that would not be
deemed navigable. Id. at 133 (citing S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec.
33756-33757 (1972)). The Court further reasoned that due to the “congressional concern for
protection of water quality . . . it is reasonable . . . to interpret the term ‘waters’ to encompass
wetlands adjacent to waters as more conveniently defined.” Riverside, 474 U.S. 121 at 133.
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The other significant Supreme Court cases regarding waters of the United States are Solid
Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159
(U.S. 2001), and Rapanos v. United States, 547 U.S. 715 (U.S. 2006). Although these cases
address the definition of “waters of the United States” and cite Riverside, they are unpersuasive
and irrelevant to the present case.
In Solid Waste Agency of Northern Cook County (SWANCC), the Court evaluated the
definition of “waters of the United States” as they pertain to “isolated ponds.” SWANCC, 531
U.S. at 171. The Court held that the “isolated ponds” were not “waters of the United States”
because there was not a “significant nexus” between the “ponds” and a navigable water. Id. at
167. Therefore, SWANCC is not persuasive to the present case because it addressed “isolated
ponds” rather than a tributary creek and navigable water such as the waters of the present case.
In Rapanos, the Court evaluated the definition of “waters of the United States” and held
them to be waters that are “relatively permanent” with “continuous surface connection” to bodies
that are waters of the United States in their own right. Rapanos, 547 U.S. at 742. However, this
overly narrow construction of the definition of “waters of the United States” is not persuasive to
the present case because its rationale failed to gather majority support. Id. at 715. Rather, the
only portion of the opinion strong enough to muster majority support was the judgement itself.
Id. Therefore, this opinion is neither binding nor persuasive to the present case because it failed
to gather enough support to become controlling on this matter.
Here, the Progress River is a “navigable-in-fact interstate body of water.” R. at 7.
Because navigable bodies of water are a “water of the United States,” 33 U.S.C. § 1362(7), the
Progress River is therefore a water of the United States. Furthermore, Fossil Creek is a water of
the United States because “waters of the United States” include “tributaries . . . and nonnavigable
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intrastate waters.” Riverside, 474 U.S. 121 at 133. Additionally, “it is essential that discharges of
pollutants be controlled at the source.” Id. (citing S. Rep. No. 92-414, P. 77 (1972)). Because
Fossil Creek is a perennial tributary to a water of the United States and is also one of its sources
that must be controlled, it is therefore a water of the United States.
In the present case, the closed and capped coal ash pond would be part of a water of the
United States because it would “form the border of” and be “in reasonable proximity to [a]
water[] of the United States . . .” Riverside, 474 U.S. 121 at 134. Here, the coal ash pond was
created by “damming the then free-flowing upper reach of Fossil Creek.” R. at 7. Because the
ash pond was created by damming Fossil Creek, a water of the United States, it therefore forms
the border of Fossil Creek and is also in reasonable proximity to this water of the United States.
Furthermore, the closed and capped coal ash pond would certainly become a “part of [the]
aquatic ecosystem.” Id. at 134. Therefore, it would clearly be a part of a water of the United
States based on Congress’s intention of a broad reach of 33 U.S.C. § 1344 as well as its close
proximity to Fossil Creek and up-stream connection to Progress River.
Here, both the Progress River and Fossil Creek are waters of the United States.
Additionally, the closed coal ash pond would be a part of Fossil Creek. Therefore, any discharge
of fill material into these bodies of water “shall be required to have a permit under” 33 U.S.C. §
1344(f)(2) since it would be a discharge into a water of the United States. Because these waters
constitute waters of the United States, this Court must next determine whether the ash pond
closure and capping plan constitutes a discharge of fill material under 33 C.F.R. § 323.2.
37
B. The proposed coal ash pond closure and capping plan would turn the former ash
pond into fill material because it replaces a portion of a water of the United States
with dry land and also changes the bottom elevation of a water of the United States.
The proposed coal ash pond closure and capping plan would turn the ash pond into fill
material and is therefore subject to the permitting requirements of 33 U.S.C. § 1344. Any
material placed into a water of the United States which either replaces a portion of the water with
dry land or changes the bottom elevation of the water constitutes fill material. 33 C.F.R. § 323.2.
In the present case, the coal ash pond closure and capping plan would constitute fill
material as defined in 33 C.F.R. § 323.2 because it replaces a portion of Fossil Creek with dry
land and changes the bottom elevation of the Creek. The closure and capping plan would replace
a portion of Fossil Creek with dry land because the coal ash pond “was created . . . by damming
the then free-flowing upper reach of Fossil Creek.” Therefore, the coal ash pond is located in an
area through which Fossil Creek once flowed. Thus, to put a cap on the area on which the Creek
once flowed would be to replace a section of Fossil Creek with dry land, subjecting this plan to
the permitting requirements of 33 U.S.C. § 1344.
Additionally, the closure and capping plan would change the bottom elevation of Fossil
Creek because it places a cap on the surface of the coal ash pond and is therefore subject to the
permitting requirements of 33 U.S.C. § 1344. The closure and capping plan would change the
bottom elevation of Fossil Creek because it is changing an area that was dammed off for the ash
pond. When the ash pond is closed, the dam will no longer be needed. When the dam is no
longer needed, Fossil Creek will return to its original pattern of flow, which in turn will lead it to
flow over the area that was once the coal ash pond. Therefore, if a cap is placed over the coal
ash pond then the bottom elevation of Fossil Creek will be different from when there was not a
cap on the pond. Thus, the closure and capping plan is subject to the permitting requirements of
38
33 U.S.C. § 1344 because it changes the bottom elevation of a water of the United States and
replaces a portion of a water of the United States with dry land.
CONCLUSION
For the foregoing reasons, Fossil Creek Watchers, Inc. requests the Court to find that (1)
the final NPDES permit properly included conditions established by the State of Progress; (2) the
EPA Administrator’s notice suspending future compliance deadlines is not effective to suspend
the zero discharge of coal ash wastes without being subject to the notice and comment
requirement of the APA; (3) the EPA’s reliance on Best Professional Judgment is justified
regardless of the 2015 ELGs; (4) the NPDES permitting requirements apply to EnerProg’s
discharges into the MEGS ash pond; and (5) once closed, the coal ash pond will no longer
qualify as a waste treatment system and therefore is subject to the permit requirements of 33
U.S.C. § 1344.
Dated: November 22, 2017
Respectfully submitted,
Counsel for Petitioner