Team No. 27

C.A. No. 17-000123 and 17-000124

UNITED STATES COURT OF APPEALS

FOR THE TWELFTH CIRCUIT

ENERPROG, L.L.C.,

Petitioner,

and

FOSSIL CREEK WATCHERS, INC.,

Petitioner,

-v.-

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Consolidated Petitions for Review of a

Final Permit Issued Under Section 402 of the Clean Water Act

NPDES Appeal No. 17-0123

Brief of Petitioner, Fossil Creek Watchers, Inc.

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. i

TABLE OF AUTHORITIES ....................................................................................................... ii

STATEMENT OF JURISDICTION ........................................................................................... 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................................... 1

STATEMENT OF THE CASE .................................................................................................... 2

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

II. Procedural History ............................................................................................................... 5

STANDARD OF REVIEW .......................................................................................................... 6

SUMMARY OF THE ARGUMENT .......................................................................................... 6

ARGUMENT ................................................................................................................................. 7

I. EPA HAS NO JURISDICTION TO DETERMINE THE APPROPRIATENESS OF THE

CONDITIONS OF STATE CWA SECTION 401 CERTIFICATIONS, AND WHILE THE

CONDITIONS AT ISSUE HERE ARE “APPROPRIATE REQUIREMENTS OF STATE

LAW,” THEY INDEPENDENTLY VIOLATE THE REQUIREMENT FOR A CWA SECTION

404 PERMIT. .................................................................................................................................. 7

A. EPA Was Required to Include the State of Progress’s Certification Conditions

Without Regard to the Conditions’ Consistency with CWA Section 401(d). ....................... 11

B. The Conditions are “Appropriate Requirements of State Law” ................................. 13

C. EPA’s Conditions Requiring Ash Pond Closure and Capping Are a Violation of § 404

Permit Requirements. ............................................................................................................ 15

II. THE APRIL 25, 2017 EPA NOTICE IS NOT EFFECTIVE TO REQUIRE

SUSPENSION OF PERMIT COMPLIANCE DEADLINES BECAUSE EPA OVERSTEPPED

ITS STATUTORY AUTHORITY BY ISSUING THE NOTICE AND BECAUSE EPA FAILED

TO UNDERGO NOTICE AND COMMENT RULEMAKING. ................................................. 17

A. APA § 705 Does Not Authorize EPA to Postpone the Compliance Date of a Duly

Promulgated Rule that has Already Become Effective. ........................................................ 17

B. EPA May Not Repeal a Duly Promulgated Rule Without Undergoing Notice and

Comment Rulemaking. .......................................................................................................... 19

ii

III. EPA REGION XII PROPERLY RELIED ON BEST PROFESSSIONAL JUDGMENT

TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES,

INDEPENDENT OF THE APPLICABILITY OF THE 2015 ELG. ........................................... 25

IV. NPDES PERMITTING REQUIREMENTS APPLY TO ENERPROG’S OUTFLOW-8,

WHICH DISCHARGES POLLUTANTS INTO THE MEGS ASH POND. ............................... 26

V. THE ASH POND CLOSURE AND CAPPPING PLAN REQUIRES A PERMIT FOR

THE DISCHARGE OF FILL MATERIAL PURSUANT TO SECTION 404 OF THE CWA. .. 31

A. The Lack of a Recapture Provision Will Not Prevent the Coal Ash Pond from

Becoming Subject to Section 404 of the CWA. .................................................................... 31

B. The Abandoned Coal Ash and the Cap Material Deposited on the Coal Ash Pond

Will Subject the Closure and Capping Plant to CWA Section 404 Permit Requirements. ... 32

TABLE OF AUTHORITIES

Cases

Alcaraz v. Block, 746 F.2d 593 (9th Cir. 1984) ............................................................................ 21

Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C.Cir. 1993) ....... 20

Am. Paper Institute, Inc. v. EPA, 996 F.2d 346 (D.C. Cir.1993).................................................... 8

American Rivers, Inc. v. F.E.R.C., 129 F.3d 99 (2d Cir. 1997) .................................................... 12

Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210 (D.D.C. 2011) ................................ 8

Auer v. Robbins, 519 U.S. 452 (1997) .................................................................................... 15, 16

Bates v. United States, 522 U.S. 23 (1997) ................................................................................... 18

Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980) ................................................................. 21

Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL (N.D. Cal. Aug. 30, 2017) 18,

19, 23

Chamber of Commerce v. OSHA, 636 F.2d 464 (D.C.Cir. 1980) ................................................. 21

Chemical Mfrs. Ass'n v. EPA, 870 F.2d 177 (5th Cir. 1989) ........................................................ 23

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837(1984) ......................... 6, 15

Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) ...................... 15, 16

Defenders of Wildlife v. EPA, 415 F.3d 1121 (10th Cir. 2005) ...................................................... 8

Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) .......................... 24

iii

EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200 (1976) ..................... 9

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).......................................................... 22

Fertilizer Inst. v. U.S. E.P.A., 935 F.2d 1303

(D.C. Cir. 1991)............................................................................................................ 22, 24, 27

Fertilizer Inst. v. U.S. E.P.A., 935 F.2d 1303, 1312 (D.C. Cir. 1991). ......................................... 31

General Motors Corp. v. Ruckelshaus, 742 F.2d 1561 (D.C.Cir.1984) ........................... 20, 21, 23

Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408 (7th Cir. 1987)..................................... 22, 30

Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408 (7th Cir. 1987)........................................... 27

Marshall v. Western Union Tel. Co., 621 F.2d 1246 (3d Cir. 1980) ...................................... 20, 26

Nat. Res. Def. Council v. E.P.A., 643 F.3d 311 (D.C. Cir. 2011) ........................................... 22, 23

Nat. Res. Def. Council, Inc. v. U.S. E.P.A., 863 F.2d 1420 (9th Cir. 1988) ................................. 25

Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992)

............................................................................................................................................. 21, 27

Pickus v. United States Bd. of Parole, 507 F.2d 1107 (D.C.Cir. 1974) .................................. 21, 27

Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820 (9th Cir. 2012) ........................................ 18

PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700 (1994) ..................... passim

S. California Aerial Advertisers’ Ass'n v. F.A.A., 881 F.2d 672 (9th Cir. 1989) .......................... 20

S.D. Warren Co. v. Maine Bd. of Environmental Protection, 126 S. Ct. 1843 (U.S. 2006) ......... 11

Sierra Club v. Meiburg, 296 F.3d 1021 (11th Cir. 2002) ............................................................... 8

Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28 (3d. Cir. 1995) ........................ 17, 19

Sprint Corp. v. F.C.C., 315 F.3d 369 (D.C. Cir. 2003) .............................................. 20, 22, 26, 27

Sprint Corp. v. F.C.C., 315 F.3d 369 (D.C. Cir. 2003). ............................................................... 30

United States v. Cumberland Farms of Connecticut, Inc., 647 F.Supp 1166 (D. Mass., 1986) ... 31

United States v. Mead Corp., 533 U.S. 218 (2001) ................................................................ 15, 18

United Techs. Corp. v. E.P.A., 821 F.2d 714 (D.C. Cir. 1987) ............................................. passim

Western Oil & Gas Assoc. v. EPA, 633 F.2d 803 (9th Cir. 1980) ................................................ 22

Statutes

33 U.S.C. § 1251(a) (2012) ............................................................................................... 10, 13, 16

33 U.S.C. § 1251(a)(2) (2012) ...................................................................................................... 13

33 U.S.C. § 1251(b) (2012) .......................................................................................................... 10

33 U.S.C. § 1311 (2012) ............................................................................................................... 11

iv

33 U.S.C. § 1311(b)(1) (2012) ...................................................................................................... 11

33 U.S.C. § 1311(b)(1)(C) (2012) .......................................................................................... 12, 13

33 U.S.C. § 1313(c)(2)(A) (2012) .......................................................................................... 12, 13

33 U.S.C. § 1313(d)(4)(B) (2012) ................................................................................................ 13

33 U.S.C. § 1314 (2012) ............................................................................................................... 11

33 U.S.C. § 1341 (2012) ..................................................................................................... 4, 11, 13

33 U.S.C. § 1341(a) (2012) ........................................................................................................... 14

33 U.S.C. § 1341(d) (2012) .................................................................................................... 14, 16

33 U.S.C. § 1342 (2012) ............................................................................................................... 19

33 U.S.C. § 1342(a) (2012) ........................................................................................................... 28

33 U.S.C. § 1344 (2012) ................................................................................................................. 4

33 U.S.C. § 1362 (2012) ............................................................................................................... 18

33 U.S.C. § 1362(14) (2012) ........................................................................................................ 11

33 U.S.C. § 1362(6) (2000) .......................................................................................................... 14

33 U.S.C. § 1362(7) (2000) .......................................................................................................... 15

33 U.S.C. § 1369(b)(2012) ............................................................................................................. 4

33 U.S.C. § 1370 (2012) ............................................................................................................... 13

5 U.S.C. § 551(4) (2012) ........................................................................................................ 22, 26

5 U.S.C. § 551(5) (2012) .............................................................................................................. 22

5 U.S.C. § 553 (2012) ................................................................................................................... 20

5 U.S.C. § 553(b) (2012) ........................................................................................................ 23, 29

5 U.S.C. § 553(b)(3)(A) (2012) .................................................................................................... 23

5 U.S.C. § 553(c) (2012) ......................................................................................................... 23, 30

5 U.S.C. § 704 (2012) ..................................................................................................................... 4

5 U.S.C. § 705 (2012) ............................................................................................................... 4, 20

5 U.S.C. § 706 (2012) ..................................................................................................................... 9

5 U.S.C. § 706(2)(c) ...................................................................................................................... 20

5 U.S.C. § 706(2)(C) ............................................................................................................... 20, 28

5 U.S.C. § 706(2)(C) (2012) ......................................................................................................... 20

5 U.S.C. §§ 701-706 (2012) ............................................................................................................ 9

5 U.S.C. §706(2)(c) (2012) ........................................................................................................... 20

v

Regulations and Administrative Materials

33 C.F.R. § 323.2 (2006) .............................................................................................................. 16

33 C.F.R. § 323.2(c) (2006) .......................................................................................................... 15

33 C.F.R. § 323.3 (2008) .............................................................................................................. 20

33 C.F.R. § 323.3 (2014) ........................................................................................................ 19, 20

33 C.F.R. § 323.3(e)(1) (2008) ..................................................................................................... 20

33 C.F.R. § 323.3(e)(2) (2008) ..................................................................................................... 20

40 C.F.R. § 122.2 (1983) .............................................................................................................. 32

40 C.F.R. § 124.19 (2017) .............................................................................................................. 5

40 C.F.R. § 130.2(d) (2017) .......................................................................................................... 13

40 C.F.R. § 131.12 (1993) ............................................................................................................ 14

40 C.F.R. § 131.4(a) (1993) .......................................................................................................... 14

40 C.F.R. § 131.6(a)-(f) (1983)..................................................................................................... 13

45 Fed. Reg. 48620 ....................................................................................................................... 32

80 Fed. Reg. 67,838 (Nov. 3, 2015).............................................................................................. 28

82 Fed. Reg. 19005, 19005 (April, 25, 2017) ................................................................... 21, 23, 28

1

STATEMENT OF JURISDICTION

This case concerns the application of section 401 and section 404 of the Clean Water Act

(“CWA”), 33 U.S.C. §§ 1341, 1344 (2012), and section 705 of the Administrative Procedures Act

(“APA”), 5 U.S.C. § 705 (2012). Petitioners timely filed petitions for review with the

Environmental Appeals Board (“EAB”) pursuant to 40 C.F.R. § 124.19 (2017). This Court has

jurisdiction over this appeal from the final decision of the EAB. 33 U.S.C. § 1369(b); 5 U.S.C. §

704; see also R. at 2.1

STATEMENT OF ISSUES PRESENTED FOR REVIEW

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

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

section 401 certification.

II. Whether the April 25, 2017 EPA Notice suspending certain future compliance

deadlines for the 2015 Final Effluent Limitation Guidelines for the Steam Electric

Power Generating Industry is effective to require the suspension of the permit

compliance deadlines for achieving zero discharge of coal ash transport water.

III. Whether EPA Region XII could rely on Best Professional Judgment as an alternative

ground to require zero discharge of coal ash transport wastes, independent of the

applicability or effectiveness of the 2015 Steam Electric Power Generating Industry

Effluent Limitation Guidelines.

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

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

of 40 C.F.R. section 122.2 that originally included waste treatment systems formed by

impounding pre-existing waters of the United States within the regulatory definition of

waters of the United States.

V. Whether the ash pond closure and capping plan requires a permit for the discharge of

fill material pursuant to section 404 of the CWA.

1 This and all subsequent citations using the format “R. at #” are references to the 2018 Final

Problem, Revised on November 20, 2017.

2

STATEMENT OF THE CASE

I. Statement of Facts

Operations and Discharges of the Moutard Electric Generating Station - Fossil Creek is

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

In June, 1978, the “then free-flowing upper reach of Fossil Creek” was dammed to create an ash

pond. R. at 7. It is unclear from the record whether Fossil Creek still flows into the ash pond. R.

at 7. The ash pond is owned by EnerProg, L.L.C. (“EnerProg”) and has now been used for thirty

nine years in service of EnerProg’s “coal-fired electric generating plant,” Moutard Electric

Generating Station (“MEGS”), which is located in Fossil, Progress. R. at 6-7. It is unclear whether

the bottom of the ash pond is covered with a protective liner.

MEGS extracts up to 125 million gallons per day (MGD) from the Moutard Reservoir

(“Reservoir”), which is used to operate its closed-cycle cooling system (“cooling tower”). R. at 7.

EnerProg drains the MEGS cooling tower and its circulating water system directly to the Reservoir.

R. at 7.

MEGS generates numerous chemicals, which are discharged from the plant in a variety of

ways. R. at 7-8. As the plant loses water from evaporation, many minerals are left behind.

EnerProg uses ash sluice water from the coal furnace to transport these minerals, known as cooling

tower blowdown, to the ash pond via Outfall 008 (“OF-8”). R. at 8.

MEGS has a Flue Gas Desulfurization (FGD) system, which mixes flue gas with limestone

slurry to collect sulfur oxides (SOx). R. at 9. Through the FGD system, EnerProg discharges

254,000 gallons of water with high concentrations of metals and chloride per day. R. at 9. The

waste water from the FGD system is used by EnerProg to moisturize fly ash before sending the

mixture to the ash pond through Outfall 009 (“OF-9”). R. at 8-9.

3

Once all of the waste is in the ash pond, it “undergoes treatment by sedimentation before

it is discharged” to the Reservoir by Outfall 002 (“OF-2”). R. at 7. The discharge from OF-2

contains “elevated levels of mercury, arsenic, and selenium, which are all toxic pollutants.” R. at

9. It is unclear whether or not the ash pond is lined. EnerProg cleans the cooling tower and the

pipes of the circulating water system by draining them directly to the Reservoir via Outfall 001

(“OF-1”). R. at 7. It is unclear whether there are any other Outfalls, specifically those numbered

between Outfall 003-007.

EnerProg’s NPDES Permit - Either for one of the Outfalls listed above or for an unnamed

Outfall, the State of Progress issued a CWA section 401 certification in response to EnerProg’s

application to the EPA for a renewal of its National Pollutant Discharge Elimination System

(NPDES) permit. R. at 8. On January 18, 2017, Environmental Protection Agency (“EPA”)

Region XII issued the NPDES permit to EnerProg authorizing EnerProg “to continue pollution

discharges associated with the continued operation” of MEGS. R. at 6. The permit also included

requirements listed by Progress in its section 401 certification. Id.

The section 401 certification mandates that EnerProg “must cease the operation of its ash

pond by November 1, 2018; complete dewatering of its ash pond by September 1, 2019; and cover

the dewatered ash pond with an impermeable cap by September 1, 2020.” R. at 8. These

requirements were based on provisions of the state-enacted Coal Ash Cleanup Act (“CACA”). R.

at 8. CACA recites that its purpose is “to prevent public hazards associated with the failures of

ash treatment pond containment systems, as well as leaks from these treatment ponds into ground

and surface waters.” R. at 8-9.

In promulgating the NPDES permit, EPA recognized that MEGS is subject to the EPA

effluent limitation guidelines (ELG) for 2015 Steam Electric Power Generating Point Source

4

Category under 40 C.F.R. § 423. R. at 7. Based on available technologies for dry ash handling,

the Best Available Technology (BAT) standard under the 2015 ELG requires MEGS to discharge

zero toxic pollutants associated with fly and bottom ash. R. at 9. However, on April 12, 2017,

EPA Administrator Scott Pruitt issued a Notice purporting to suspend the compliance date for the

2015 ELG. R. at 7. There is also a challenge to the 2015 ELG pending before the Fifth Circuit.

R. at 9.

EPA determined that the MEGS permit “must contain limits for toxic pollutants actually

present in the discharge based on the BAT,” independent of the 2015 ELG. R. at 9. The decision

was based on the determination that dry ash handling had been in use at “existing plants for many

years” and MEGS was sufficiently profitable to adopt dry ash handling. R. at 9. Accordingly, the

permit writer exercised his best professional judgment (BPJ) that “zero discharge of ash handling

wastes by November 1, 2018 constitutes BAT for discharges associated with coal ash wastes.” R.

at 9.

To comply with the permit’s mandate that MEGS discharge zero toxic pollutants associated

with coal ash, the permit requires EnerProg to construct a new lined Retention Basin. R. at 8-9.

EnerProg will “reroute all waste streams that are currently discharged to the ash pond” to instead

flow into the Retention Basin, which includes at least OF-8 and OF-9. R. at 9. EnerProg is

supposed to be equipping the Retention Basin with a “cell where various vacuumed sediments and

solids can be decanted prior to disposal.” R. at 10.

Regardless of the NPDES permit’s requirement that MEGS have a zero discharge of “ash

handling wastes,” EnerProg will send “monofill leachate . . . contain[ing] coal ash” to the Retention

Basin. R. at 9-10. This coal ash, along with all other waste water, will be funneled from the

Retention Basin to OF-2 by Outfall 002A (“OF-2A”). R. at 8. OF-2 will then take the waste to

5

the Reservoir. R. at 8. OF-2A does not discharge “yard sump overflows,” which were discharged

via OF-2. R. at 8. OF-2A does discharge chemical metal cleaning waste, which was not

discharged via OF-2. R. at 8. It is unclear whether OF-2 will remain connected to the ash pond.

For the purpose of “evaporate[ing] the majority of the waste water produced from the FGD

[ ] system,” EnerProg installed a vapor compression evaporator (VCE) in 2015. R. at 9. The VCE

system eliminates the FGD waste water stream from OF-2 except for “severe” rain events, but it

is unclear what constitutes a “severe” rain event. R. at 9. EnerProg is constructing an FGD settling

basin, and “the waste from the basin will be treated by VCE.” R. at 10. “In case of severe storms,”

the basin’s overflow “may be routed to [OF-2].” R. at 10. It is uncertain whether the VCE system

prevents FGD waste from being discharged to the Retention Basin via OF-9.

The MEGS final permit required that at the MEGS facility, “there shall be no discharge of

pollutants in fly ash transport water” and that “there shall be no discharge of pollutants in bottom

ash transport water” by November 1, 2018. R. at 10. The permit said that the requirement only

applied to fly ash and bottom ash transport generated after November 1, 2018. R. at 10.

Additionally, the permit authorized EnerProg to continue using OF-08 at MEGS to “transport

bottom and fly ash to the coal ash pond without any effluent limits on an interim basis until closure

of the coal ash treatment pond on November 1, 2018. R. at 10.

II. Procedural History

On April 1, 2017, both EnerProg and Fossil Creek Watchers, Inc. (“FCW”) filed a petition

in response to the NPDES permit with the Environmental Appeals Board (“EAB”), requesting that

the permit be remanded to Region XII for further consideration. R. at 6. Following a hearing

6

before the Honorable Judge Wink, the Honorable Judge Blinc, and the Honorable Judge Knod, the

EAB denied both petitions for review. R. at 6.

STANDARD OF REVIEW

Judicial review of EPA’s issuance of an NPDES permit is governed by provisions of the

Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706 (2012). A reviewing court “shall

hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of

statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706.

An agency’s interpretation of an ambiguous statute receives deference if Congress

implicitly or expressly delegated authority to enforce and interpret the statute. Chevron U.S.A. v.

Natural Resources Defense Council, 467 U.S. 837, 842–45, (1984).

SUMMARY OF THE ARGUMENT

First, EPA has no jurisdiction to determine the appropriateness of the conditions of state

CWA section 401 certifications because states are independently tasked with protecting certifying

the quality of their water resources and safeguarding the health and wellbeing of their citizens.

Additionally, although the Progress section 401 conditions are appropriate, they independently

violate CWA section 404 because EPA adopted self-contradictory regulations regarding

impermeable cap and fill material.

Second, EPA’s April 25, 2017 Notice is ineffective to postpone suspension of permit

compliance deadlines because (1) the APA only allows postponement of rules that have not yet

become effective and (2) because EPA neglected to engage in notice and comment rulemaking

before issuing the notice.

7

Third, EPA appropriately relied on Best Professional Judgment to require zero discharge

of coal ash transport wastes because the runoff from the MEGS coal plant is comprised of various

toxic pollutants, including mercury and selenium that were not regulated under the 1982 ELGs.

Fourth, NPDES permitting requirements apply to EnerProg’s Outflow-8, which discharges

pollutants into the MEGS ash pond. In 1980, EPA unilaterally stayed a provision in its CWA

regulations, exempting all waste treatment sites from CWA permit requirements. However, this

massive change in policy was undertaken without any notice and comment. As result, the policy

change was conducted in violation of the APA.

Finally, the coal ash closure and capping process will require a permit for the discharge of

fill material pursuant to section 404 of the CWA. Although the ash pond is currently exempted

from such requirements, its exempted status will expire once it is no longer used as a waste

treatment

ARGUMENT

I. EPA HAS NO JURISDICTION TO DETERMINE THE APPROPRIATENESS OF

THE CONDITIONS OF STATE CWA SECTION 401 CERTIFICATIONS, AND

WHILE THE CONDITIONS AT ISSUE HERE ARE “APPROPRIATE

REQUIREMENTS OF STATE LAW,” THEY INDEPENDENTLY VIOLATE THE

REQUIREMENT FOR A CWA SECTION 404 PERMIT.

The Clean Water Act “is a comprehensive water quality statute designed to ‘restore and

maintain the chemical, physical, and biological integrity of the Nation's waters.’” PUD No. 1 of

Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704 (1994) (quoting 33 U.S.C. § 1251(a)).

The CWA works with a two-step approach which delegates certain responsibilities to both federal

and state governments. 33 U.S.C. § 1251(b).

8

The first step requires the EPA to establish technology based limitations on individual

discharges by point sources into the United States navigable waters. 33 U.S.C. §§ 1311, 1314. A

point source is “any discernable, confined and discrete conveyance ... from which pollutants are

or may be discharged,” 33 U.S.C. § 1362(14), like an industrial pipe. Am. Paper Institute, Inc. v.

EPA, 996 F.2d 346, 348–49 (D.C.Cir.1993). The EPA is directed in § 301 of the CWA to set

effluent limitations capping the maximum allowable amount of discharge at each distinct point

source. 33 U.S.C. § 1311(b)(1). Once the effluent limitations are developed, they are included in

the National Pollutant Discharge System (“NPDES”). Id. The NPDES issues permits to individual

entities in charge of point sources which set the maximum amount of discharges of particular

contaminants which can be emitted from these sources. See generally id.; see also Sierra Club v.

Meiburg, 296 F.3d 1021, 1024 (11th Cir. 2002) (“The statute gives EPA the authority to issue

permits for point sources, and those permits are to establish technology-based effluent limitations

that incorporate increasingly stringent levels of pollution control technology over time.”).

The second step of the CWA addresses pollution stemming from non-point sources.

“[N]on-point source pollution is the entry of contaminants into the water body by any means other

than a discrete point source.” Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 214

(D.D.C. 2011). “Unlike point source pollution, EPA lacks the authority to control non-point source

discharges through a permitting process.” Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124

(10th Cir.2005). Therefore, the CWA requires each State to implement water quality standards

(also known as health-based standards) for the interstate water bodies within the State’s borders.

33 U.S.C. § 1341. EPA regulations mandate these standards contain: (1) designated uses for the

water body, (2) information concerning the methodology for choosing these uses, (3) water quality

criteria sufficient to protect the designated uses, (4) an antidegradation policy to prevent clean

9

waters from slipping below applicable standards, (5) a certification that the water quality standards

were properly adopted in a manner consistent with state law and (6) general information useful in

aiding the Agency's review. 40 C.F.R. § 131.6(a)-(f) (1983). The most important parts of the

standards are the “designated uses of the navigable waters involved and the water quality criteria

for such water.” 33 U.S.C. § 1313(c)(2)(A); see also 40 C.F.R. § 130.2(d) (2017) (defining water

quality standard as “a designated use or uses for the waters ... and water quality criteria for such

waters”).

When approaching the issue of whether a state requirement is a permissible condition of a

401 certification under the Clean Water Act, courts must determine whether the limitation at issue

falls within the scope of the state’s authority. PUD No. 1 of Jefferson Cty. v. Washington Dep't of

Ecology, 511 U.S. 700, 710 (1994).

“Section 303 of the Act . . . requires each State, subject to federal approval, to institute

comprehensive water quality standards establishing water quality goals for all intrastate waters.”

Id. (citing 33 U.S.C. §§ 1311(b)(1)(C))) “These state water quality standards provide ‘a

supplementary basis ... so that numerous point sources, despite individual compliance with effluent

limitations, may be further regulated to prevent water quality from falling below acceptable

levels.’” PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 704 (quoting

EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205, n. 12, 96 S.Ct.

2022, 2025, n. 12, 48 L.Ed.2d 578 (1976)).

A state water quality standard “shall consist of the designated uses of the navigable waters

involved and the water quality criteria for such waters based upon such uses” and “shall be such

as to protect the public health or welfare, enhance the quality of water and serve the purposes of

this chapter.” 33 U.S.C. § 1313(c)(2)(A). The chapter’s overall purposes are to “restore and

10

maintain the chemical, physical, and biological integrity of the Nation's waters,” 33 U.S.C. §

1251(a), and to achieve “water quality which provides for the protection and propagation of fish,

shellfish, and wildlife.” 33 U.S.C. § 1251(a)(2).

When establishing state water quality standards, the state shall take into consideration the

water’s “use and value for public water supplies, propagation of fish and wildlife, recreational [and

other purposes.]” 33 U.S.C. § 1313(c)(2)(A). Section 303 additionally contains an antidegradation

policy which requires state standards to “be sufficient to maintain existing beneficial uses of

navigable waters, preventing their further degradation.” PUD No. 1 of Jefferson Cty. v.

Washington Dep't of Ecology, 511 U.S. 700, 705 (1994) (citing 33 U.S.C. § 1313(d)(4)(B)).

Accordingly, EPA requires that state water quality standards include “a statewide antidegradation

policy” which will guarantee that “[e]xisting instream water uses and the level of water quality

necessary to protect the existing uses shall be maintained and protected.” 40 C.F.R. § 131.12

(1993). At a minimum, state water quality standards must satisfy these conditions, but states can

enact more stringent requirements than mandated by the EPA regulation. See 33 U.S.C. §§

1311(b)(1)(C), 1370; see also 40 C.F.R. § 131.4(a) (1993) (“As recognized by section 510 of the

Clean Water Act [33 U.S.C. § 1370], States may develop water quality standards more stringent

than required by this regulation”).

To enforce state water quality standards, and therefore comply with § 401 of the Act, States

are required “to provide a water quality certification before a federal license or permit can be issued

for activities that may result in any discharge into intrastate navigable waters.” PUD No. 1 of

Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 716 (citing 33 U.S.C. § 1341). Under

§ 401, those applying for a federal permit which sanctions conduct that “may result in any

discharge into the navigable waters” must also obtain from the State a certification that any such

11

potential “discharge will comply with the applicable provisions of sections [1311, 1312, 1313,

1316, and 1317 of this title].” PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511

U.S. at 710 (quoting 33 U.S.C. § 1341(a)). Furthermore, no specific discharge has to be present,

as “[t]he text refers to the compliance of the applicant, not the discharge.” PUD No. 1 of Jefferson

Cty. v. Washington Dep't of Ecology, 511 U.S. at 711.

Section 401(d) requires that all state-issued water quality certifications:

shall set forth any effluent limitations and other limitations, and monitoring

requirements necessary to assure that any applicant . . . will comply with any

applicable effluent limitations and other limitations, under section [1311 or 1312 of

this title] . . . and with any other appropriate requirement of State law set forth in

such certification.

33 U.S.C. § 1341(d). The limitations included in the certification become a condition on

any federal license. Id.

A. EPA Was Required to Include the State of Progress’s Certification Conditions

Without Regard to the Conditions’ Consistency with CWA Section 401(d).

When analyzing a 401 certification and state requirement question under the CWA, the

Court in PUD No. 1 wrote that courts have to determine whether the state’s condition falls within

its authority. PUD No. 1 of Jefferson City, 511 U.S. at 710. Each state has the responsibility of

regulating water pollution and use. See S.D. Warren Co. v. Maine Bd. of Environmental

Protection, 126 S. Ct. 1843, 164 L. Ed. 2d 625, 62 Env't. Rep. Cas. (BNA) 1257, 17 A.L.R. Fed.

2d 807 (U.S. 2006).

Section 404 of the CWA dredge and fill permit program defines material that is excavated

or dredged as “dredged material.” 33 C.F.R. § 323.2(c) (2006). What is used to replace aquatic

areas with dry material or to raise the bottom of a body of water is defined as “fill material.” Id. §

323.2(e). The CWA classifies dredged and fill materials as pollutants, and the discharge of

pollutants into a water of the United States is illegal without a permit. 33 U.S.C. § 1362(6) (2000)

12

and § 1311 (2000). The CWA defines “navigable waters” as “waters of United States, including

the territorial seas.” 33 U.S.C. § 1362(7) (2000). The EPA has defined “the waters of the United

States” and “navigable waters” to include most water bodies, including wetlands, streams, rivers,

lakes. 33 C.F.R. § 328.3(a)(2)(3).

In American Rivers, Inc. v. F.E.R.C., 129 F.3d 99, 28 Envtl. L. Rep. 20, 258 (2d Cir. 1997),

the court held that FERC was required by the language of §401 to include all state conditions into

licenses for hydropower plants. The court also ruled that the legality of the conditions could only

be challenged in an appropriate court of law. Id. Importantly, the court found that the plain

language in §401 of “shall become a condition” to be very persuasive in leaving FERC little power

to challenge state conditions that it believed were beyond the state’s power. Id. The court

acknowledged that the language only referred to the state’s authority to enact conditions regarding

water quality, but it wrote that this was not the same as giving FERC the ability to decide which

conditions were within the parameters of the power given to the states under §401. Id. Courts are

still in charge of decisions regarding the validity of a state’s conditions; otherwise, the conditions

are presumed to be required to be listed on any §401 permit. Id. Therefore, according to American

Rivers, an agency has no jurisdiction in this area; only the courts do.

In the present case, the remediation of the coal ash pond would be considered dredge and

fill, and so, it would be a pollutant affecting a navigable water (historically Fossil Creek), which

is a tributary to the navigable-in-fact Progress River. 33 C.F.R. § 323.2 (2006); R. at 7. Because

this case involves pollution running into a navigable water, and a state has a responsibility to

regulate water pollution and use according to S. D. Warren, the CACA conditions would fall under

a state’s authority in §401(d) to regulate water quality. According to American Rivers, an agency

does not have the authority to strike down state conditions, and they must be included on the permit

13

because of the plain language in §401, which reads that certifications “shall set forth any effluent

limitations and other limitations, and monitoring requirements necessary to assure that any

applicant…will comply… with any other appropriate requirement of State law set forth in such

certification.” 33 U.S.C. § 1341(d).

Therefore, the CACA conditions set forth by the State of Progress must be included in the

permit because the EPA does not have the power to alter or remove them.

B. The Conditions are “Appropriate Requirements of State Law”

Minimum stream flow requirements are “appropriate requirements of state law,” and

therefore, minimum stream flow requirements are permissible conditions for a § 401 certification.

PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 714. In PUD, the state

of Washington issued a § 401 certification approving the construction of a hydroelectric dam

subject to the condition that after the dam’s installation, there would remain a minimum amount

of water flowing through the original riverbed, so as to protect three species of fish. PUD No. 1

of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 709. Washington’s minimum stream

flow requirement was held to be a “permissible condition of a § 401 certification” because the

Clean Water Act's goal is to maintain the “chemical, physical, and biological integrity of the

Nation's waters”, 33 U.S.C. § 1251(a), States are required to consider the use of waters for

“propagation of fish and wildlife” under 33 U.S.C. § 1313(c)(2)(A), and Washington declared the

river a fish habitat and enacted the minimum stream flow requirement pursuant to this legislation.

The requirements enforced against EnerProg through Progress’s § 401 certification were

designed to “prevent public hazards associated with the failures of ash treatment pond containment

systems, as well as leaks from these treatment ponds into ground and surface waters.” R. 8-9.

14

This aligns quite well with § 1313(c)(2)(A)’s requirement that in promulgating water quality

standards, States must consider the “use and value for public water supplies, propagation of fish

and wildlife, recreational [and other purposes.]” 33 U.S.C. § 1313(c)(2)(A). Without requiring the

closure and handling of coal ash ponds, Progress’s water quality standards would not “be sufficient

to maintain existing beneficial uses of navigable waters, preventing their further degradation.”

PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. at 705.

If the MEGS coal ash pond were to fail, the ensuing environmental destruction would

indefinitely change the ecosystem of Fossil Creek and Progress River. The coal ash pond at issue

here is assumedly unlined and has been in use since 1978. R. 7. The facility has a maximum

dependable capacity of 745 megawatts. Similar electricity generating steam power plants have

spilled tens of thousands of tons of coal ash, the effect of which changed not only biological

qualities of the ecosystem surrounding the facilities, but reaped destruction on rivers miles away.2

Under the reasoning of PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511

U.S. 700 (1994), a minimum stream flow requirement was an “appropriate requirement of state

law” because the lack of water might harm three species of fish. In the present case, the destruction

which would occur if the MEGS coal ash pond were to spill would be exponentially larger on the

scales of distance and time than the potential degradation at issue in PUD. Therefore, the EAB

2 See https://www.duke-energy.com/our-company/about-us/power-plants/dan-river-steam-station (describing the

Dan River Steam Plant, which had been in operation for 63 years and had a maximum dependable capacity of 276

megawatts); http://wncn.com/2016/02/02/nc-coal-ash-spill-clean-up-continues-2-years-later/ (detailing the 2014 coal

ash spill from Dan River Steam Plant as spilling 39,000 tons of coal ash and millions of gallons of contaminated

water which spread down the Dan River for 70 miles); see also

http://www.npr.org/templates/story/story.php?storyId=99134153 (describing the Kingston Fossil Plant coal ash spill

as leaking 1.1 billion gallons of coal ash sludge across 300 acres in amounts as deep as 9 feet);

https://www.tva.gov/Energy/Our-Power-System/Coal/Kingston-Fossil-Plant (listing the Kingston Plant as 63 years

old and having the maximum dependable capacity of 1398 megawatts).

15

correctly ruled that the Progress requirements in its § 401 certification were “appropriate

requirements of State law.”

C. EPA’s Conditions Requiring Ash Pond Closure and Capping Are a Violation

of § 404 Permit Requirements.

EPA’s inclusion of the ash pond closure and remediation conditions in EnerProg’s NPDES

permit was “not in accordance with law” because the remediation conditions are subject to Corps

jurisdiction under § 404 permitting requirements. In assessing such claims, courts will first look

at “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). If Congress has not “directly

spoken to the precise question at issue,” meaning there is ambiguity present, the court “will look

first to the agency regulations which are entitled to deference if they resolve the ambiguity in a

reasonable manner.” Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 277–

78, 129 S. Ct. 2458, 2469 (2009) (citing Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842 (1984); United States v. Mead Corp., 533 U.S. 218, 226–227

(2001)). Then, the court will look to the agency’s interpretation of the regulation, which will be

“controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519

U.S. 452, 461 (1997) (internal quotations omitted).

There is no definition for “fill material” in 33 U.S.C. § 1362, so Congress has not directly

spoken to the precise question of whether an impermeable cap counts as fill material under § 404

permitting requirements. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842 (1984).

In a joint regulation, the EPA and Corps have defined the term "fill material." 33 C.F.R. §

323.3. To both agencies, fill material means “material placed in waters of the United States where

16

the material has the effect of: (i) Replacing any portion of a water of the United States with dry

land; or (ii) Changing the bottom elevation of any portion of a water of the United States.” 33

C.F.R. § 323.3(e)(1) (2008). Additionally, examples “of such fill material include, but are not

limited to: rock, sand, soil, [and] clay . . . .” 33 C.F.R. § 323.3(e)(2) (2008). The impermeable

cap would likely be made out of some combination of “rock, sand, soil, [or] clay” and the cap’s

purpose is to both replace “a water of the United States with dry land” and to change “the bottom

elevation” of a water of the United States. See id.

Here, EPA interpreted 33 U.S.C. § 1342 to apply to the impermeable cap condition, and

included the condition under the § 402 NPDES permit. 33 U.S.C. § 1342. Therefore, EPA

determined that its own regulatory definition of fill material within 33 C.F.R. § 323.3 did not apply

to the impermeable cap condition. This is necessarily so because “[b]y specifying that, ‘[e]xcept

as provided in ... [§ 404,]’ the EPA ‘may ... issue permit[s] for the discharge of any pollutant,’

§ 402(a) forbids the EPA to issue permits for fill materials falling under the Corps' § 404 authority.”

Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 129 S. Ct. 2458, 2469

(2009).

This determination was both “plainly erroneous” and “inconsistent with the regulation.”

Auer v. Robbins, 519 U.S. 452, 461 (1997). The impermeable cap would likely be made out of

some combination of “rock, sand, soil, [or] clay” and the cap’s purpose is to both replace “a water

of the United States with dry land” and to change “the bottom elevation” of a water of the United

States. See 33 C.F.R. § 323.3 (2008). As EPA’s interpretation of its own regulation is invalid,

EPA’s decision does not merit Auer deference. Therefore, EPA is not entitled to Chevron

deference and EnerProg must attain a § 404 permit from the Corps for the ash pond conditions, in

addition to the § 402 permit received from the EPA.

17

II. THE APRIL 25, 2017 EPA NOTICE IS NOT EFFECTIVE TO REQUIRE

SUSPENSION OF PERMIT COMPLIANCE DEADLINES BECAUSE EPA

OVERSTEPPED ITS STATUTORY AUTHORITY BY ISSUING THE NOTICE

AND BECAUSE EPA FAILED TO UNDERGO NOTICE AND COMMENT

RULEMAKING.

As discussed above, the APA proscribes the scope of this Court’s review of agency actions

and requires that “[t]he reviewing court shall . . . hold unlawful and set aside agency action,

findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority or limitations,

or short of statutory right.” 5 U.S.C. § 706(2)(C).

In adherence to the standard of review proscribed by APA § 706(2)(c), this Court should

hold unlawful and set aside EPA’s April 25, 2017 Notice regarding the “Postponement of Certain

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

Generating Point Source Category.” 82 Fed. Reg. 19005, 19005 (April, 25, 2017). As discussed

below, the Notice far exceeds EPA’s authority under section 705 of the APA, 5 U.S.C. § 705, and

is thus in excess of EPA’s statutory authority. 5 U.S.C. § 706(2)(C). The Notice also represents

an attempt by EPA to do with a mere stroke of a pen what EPA is statutorily obliged to do through

notice and comment rulemaking, 5 U.S.C. § 553, and is thus in excess of EPA’s statutory

limitations. 5 U.S.C. §706(2)(c).

A. APA § 705 Does Not Authorize EPA to Postpone the Compliance Date of a

Duly Promulgated Rule that has Already Become Effective.

Far from endowing agencies with sweeping powers to block implementation of existing

rules or regulations, section 705 of the APA only permits that “[w]hen an agency, finds that justice

so requires, it may postpone the effective date of action taken by it, pending judicial review.” 5

U.S.C. § 705. In Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28, 31 (3d. Cir. 1995),

the court noted that “effective dates” are a separate and distinct concept than “compliance dates.”

18

In Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL at 8 (N.D. Cal. Aug.

30, 2017), the court was presented with a federal agency (the Office of Natural Resources Revenue

or “ONRR”) that contended – like EPA does here – that the term “effective date” as used in APA

§ 705 could be construed to mean “compliance date.” Following the Supreme Court’s suggestion

that courts “ordinarily resist reading words or elements into a statute that do not appear on its face,”

Bates v. United States, 522 U.S. 23, 29, 118 S. Ct. 285 (1997), the Becerra court determined that

the plain language of APA § 705 only authorizes postponement of “effective dates” and not

“compliance dates.” Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL at 9 (N.D.

Cal. Aug. 30, 2017).

Although the lack of any meaningful ambiguity in the plain language of APA § 705

essentially forecloses the possibility of deference playing a critical role in the Court’s analysis, it

is notable that the Becerra court did not extend any level of deference to ONRR’s interpretation

of APA § 705. Id. Instead, the court found that United States v. Mead Corp., 533 U.S. 218, 226–

27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) and Price v. Stevedoring Servs. of Am., Inc., 697 F.3d

820, 826 (9th Cir. 2012), necessitate that Chevron deference only applies “when an agency is

exercising authority delegated to it by Congress to administer a particular statute, and that

Congress has not delegated ONRR authority to administer the APA.” Becerra v. United States

Dep’t of Interior, No. 17–cv–02376–EDL at 7 (N.D. Cal. Aug. 30, 2017). Mead Corp. further

limits the potential for Chevron deference to be applied in cases involving the APA by stating that

“administrative implementation of a particular statutory provision qualifies for Chevron deference

when it appears that Congress delegated authority to the agency generally to make rules carrying

the force of law, and that the agency interpretation claiming deference was promulgated in the

exercise of that authority.” Mead Corp., 533 U.S. at 226–27.

19

Here, as in Becerra, EPA has not demonstrated that Congress ever delegated authority to

EPA to interpret APA § 705 or any other provisions of the APA. As a result of this lack of

delegation (compounded with a lack of ambiguity in the statute), EPA’s interpretation of APA §

705 is not entitled to deference. EPA’s entirely unsupported assertion that “compliance dates” are

“within the meaning of the term effective date,” 82 Fed. Reg. 19005, 19005 (April 25, 2017) runs

contrary to the weight of authority that finds otherwise. Becerra v. United States Dep’t of Interior,

No. 17–cv–02376–EDL at 7 (N.D. Cal. Aug. 30, 2017); Silverman v. Eastrich Multiple Inv’r Fund,

L.P., 51 F.3d 28, 31 (3d. Cir. 1995). Accordingly, this Court should find that EPA exceeded the

limited statutory authority it was provided under APA § 705 when it issued its April 25, 2017

Notice to postpone the compliance dates of a rule that had already become effective. Because EPA

acted in excess of its statutory authority, its Notice should be set aside pursuant to 5 U.S.C. §

706(2)(C).

B. EPA May Not Repeal a Duly Promulgated Rule Without Undergoing Notice

and Comment Rulemaking.

Attempting to repeal a rule without undergoing notice and comment rulemaking is a

violation of 5 U.S.C. § 706(2)(C). The APA unambiguously states that “[r]ule making means

agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5) (emphasis

added). A rule is defined as the “whole or a part of an agency statement of general . . . applicability

and future effect designed to implement, interpret, or prescribe law or policy or describing the

organization, procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4).

Under § 553 of the APA, agencies are required to engage in two practices before

promulgating a rule. First, “[g]eneral notice notice of proposed rule making shall be published in

the Federal Register.” 5 U.S.C. § 553(b). Second, after notice, the “agency shall give interested

persons an opportunity to participate in the rule making through submission of written data, views,

20

or arguments” and “[a]fter consideration of the relevant matter presented, the agency shall

incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C.

§ 553(c).

There are a few exceptions to § 553’s notice and rule-making requirements. These include

procedural rules, such as an “agency organization, procedure, or practice,” as well as non-

legislative rules like general statements of policy or interpretive rules. 5 U.S.C. § 553(b)(3)(A).3

“Whereas a clarification may be embodied in an interpretive rule that is exempt from notice and

comment requirements, 5 U.S.C. § 553(b)(3)(A), see Am. Mining Cong. v. Mine Safety & Health

Admin., 995 F.2d 1106, 1109 (D.C.Cir. 1993), new rules that work substantive changes in prior

regulations” are subject to the APA’s notice and comment procedures. Sprint Corp. v. F.C.C., 315

F.3d 369, 374 (D.C. Cir. 2003); see also Marshall v. Western Union Tel. Co., 621 F.2d 1246, 1250

(3d Cir. 1980) (“We believe that the district court erred in deferring to the Secretary's position

because the workweek standard is in reality not an ‘interpretation’ of the governing statute but

rather a substantive amendment of the regulations. As such, we believe the Secretary must engage

in a rulemaking procedure conforming with the notice and comment provisions of [§ 553].”).

An “interpretative rule simply states what the administrative agency thinks the underlying

statute means, and only ‘reminds affected parties of existing duties.’” United Techs. Corp. v.

E.P.A., 821 F.2d 714, 718 (D.C. Cir. 1987) (quoting General Motors Corp. v. Ruckelshaus, 742

F.2d 1561, 1565 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1074, (1985)). “A rule that

3 The exception most widely used by agencies is the “good cause” exception, where an agency finds for “good

cause” that giving notice and an opportunity for comment would be “impracticable, unnecessary, or contrary to the

public interest.” 5 U.S.C. § 553(b)(3)(B) (holding that agencies must provide “a brief statement of reasons”

supporting the good cause invocation); see S. California Aerial Advertisers’ Ass'n v. F.A.A., 881 F.2d 672, 677 (9th

Cir. 1989). Here, EPA provided no “brief statement of reasons” and have never asserted that its amendment of 45

Fed. Reg. 48620 fell under the protection of the “good cause” exception.

21

clarifies a statutory term is the classic example of an interpretative rule.” Nat'l Family Planning

& Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 236 (D.C. Cir. 1992) (citing Alcaraz v.

Block, 746 F.2d 593, 613 (9th Cir. 1984) (explaining that interpretative rules “ ‘are those which

merely clarify or explain existing law or regulations,’ ” and “are essentially hortatory and

instructional”); Batterton v. Marshall, 648 F.2d 694, 705 (D.C. Cir. 1980) (holding that

interpretative rules serve “an advisory function explaining the meaning given by the agency to a

particular word or phrase in a statute or rule it administers”). Regulations are usually deemed to

be interpretative when they only track the statutory requirements and “simply explain [ ] something

the statute already required.” Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979

F.2d 227, 237 (D.C. Cir. 1992) (quoting Alcaraz, 746 F.2d at 613).

“Conversely, a legislative or substantive rule is one that does more than simply clarify or

explain a regulatory term, or confirm a regulatory requirement, or maintain a consistent agency

policy.” Id. A rule is considered legislative “if by its action the agency intends to create new law,

rights or duties.” United Techs. Corp. v. E.P.A., 821 F.2d 714, 718 (D.C. Cir. 1987) (quoting

General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir. 1984) (en banc), cert.

denied, 471 U.S. 1074, (1985)) (internal quotation marks omitted); see also Pickus v. United States

Bd. of Parole, 507 F.2d 1107, 1113 (D.C.Cir. 1974) (holding that guidelines for determining parole

eligibility were “not interpretations of a statute's meaning,” but instead were self-imposed

“controls over the manner and circumstances in which the agency will exercise its plenary

power.”). “Thus, a rule is legislative if it attempts ‘to supplement [a statute], not simply to construe

it.’” Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 237 (D.C. Cir.

1992) (quoting Chamber of Commerce v. OSHA, 636 F.2d 464, 469 (D.C.Cir. 1980)) (citations

omitted). “[I]f a second rule repudiates or is irreconcilable with a prior legislative rule, the second

22

rule must be an amendment of the first; and, of course, an amendment to a legislative rule must

itself be legislative.” Sprint Corp. v. F.C.C., 315 F.3d 369, 374 (D.C. Cir. 2003) (quoting National

Family Planning & Reproductive Health Ass'n v. Sullivan, 979 F.2d 227, 235 (D.C. Cir. 1992)

(quotations and citations omitted)). “[O]nce a regulation is adopted by notice-and-comment

rulemaking,” substantive changes to the regulation’s text “may be changed only in that [same]

fashion.” Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987).

Even after an agency changes a policy through regular notice and comment procedures, the

agency “must show that there are good reasons for the new policy,” but “it need not demonstrate

to a court's satisfaction that the reasons for the new policy are better than the reasons for the old

one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009).

“Ordinarily, when a regulation is not promulgated in compliance with the APA, the

regulation cannot be ‘afforded the force and effect of law.’” Fertilizer Inst. v. U.S. E.P.A., 935

F.2d 1303, 1312 (D.C. Cir. 1991) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 313 (1979))

(internal quotations and citations omitted). Accordingly, if a court finds that an agency violates

the notice and comment provisions of § 553 when promulgating a rule, then the rule may be

vacated. Nat. Res. Def. Council v. E.P.A., 643 F.3d 311, 320–21 (D.C. Cir. 2011) (holding an EPA

Guidance was invalid on procedural grounds without addressing substantive claims because “EPA

issued the Guidance in violation of the Administrative Procedure Act's notice and comment

requirement,” and because “preserving the integrity of the notice and comment process strongly

outweighs” any injury which might occur because of the delay in addressing a group’s substantive

challenges). However, when necessary, an unlawfully created rule can be left in place while the

agency provides the proper procedural remedy. See, e.g., Fertilizer Inst. v. U.S. E.P.A., 935 F.2d

1303, 1312 (D.C. Cir. 1991); Western Oil & Gas Assoc. v. EPA, 633 F.2d 803, 813 (9th Cir. 1980);

23

Chemical Mfrs. Ass'n v. EPA, 870 F.2d 177, 236 (5th Cir. 1989), cert. denied, 495 U.S. 910 (1990).

But see Alaniz v. OPM, 728 F.2d 1460, 1469–70, n. 7 (Fed. Cir. 1984) (declining to leave in place

procedurally inadequate regulations that are not “harmless”).

Presented with factual circumstances bearing a strong resemblance to those before this

Court, the Federal District Court for the Northern District of California ruled in Becerra v. United

States Dep’t of Interior, No. 17–cv–02376–EDL (N.D. Cal. Aug. 30, 2017), that a recent attempt

by the Office of Natural Resources Revenue (“ONRR”) to postpone a duly promulgated rule

without first engaging in notice and comment rulemaking was a violation of the APA, 33 U.S.C.

§ 553. In outlining the important role the APA plays in providing order to the rulemaking process,

the Becerra court advised that

The APA does not permit an agency to “guide a future rule through the rulemaking

process, promulgate a final rule, and then effectively repeal it, simply by

indefinitely postponing its operative date. The APA specifically provides that the

repeal of a rule is rulemaking subject to rulemaking procedures.”

Becerra v. United States Dep’t of Interior, No. 17–cv–02376–EDL (N.D. Cal. Aug. 30,

2017) (quoting Nat. Res. Def. Council, Inc. v. EPA, 683 F. 2d 752, 762 (3d. Cir. 1982).

In the present case, EPA’s April 25, 2017 Notice must be set aside because it attempts to

repeal a rule that was duly promulgated through notice and comment rulemaking without

undertaking such statutorily mandated procedures itself. It is uncontested that the 2015 ELGs fall

within the statutory definition of “rule” found at 5 U.S.C. § 551(4). The 2015 ELGs also fall

squarely within the definition of a “legislative rule.” United Techs. Corp. v. E.P.A., 821 F.2d 714,

718 (D.C. Cir. 1987) (finding that a rule is considered to be legislative “if by its action the agency

intends to create new law, rights or duties.”) (quoting General Motors Corp. v. Ruckelshaus, 742

F.2d 1561, 1565 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1074, (1985)). For example,

24

the 2015 ELGs create new duties for polluters by, among other things, updating the Best Available

Technology standard used to formulate NPDES permit limits. R. at 9. Unsurprisingly, the 2015

ELGs were promulgated by EPA following the traditional notice and comment procedures

enshrined in 5 U.S.C. § 553. See Effluent Limitations Guidelines and Standards for the Steam

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

In stark contrast to EPA’s earlier detailed analysis of the costs and benefits arising from

the 2015 ELGs, see. Id., EPA’s April 25, 2017 Notice states merely that EPA is aware of objections

to the 2015 ELGs; has been informed of new data relevant to the ELGs; and “wishes to review

these data.” 82 Fed. Reg 19005, 19005 (April, 25, 2017). Despite the lack of any process even

resembling notice and comment rulemaking, EPA has indefinitely postponed the “compliance

dates that have not yet passed” contained in various sections of the 2015 ELGs. 82 Fed. Reg 19005,

19006 (April, 25, 2017). Such an action is tantamount to a suspension or repeal of a rule without

notice and comment. See. Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 814-818

(D.C. Cir. 1983) (finding that EPA’s deferral of a permitting process for hazardous waste

incinerators amounted to an impermissible suspension of a regulation without notice and

comment). Because EPA’s April 25, 2017 Notice amounts to a suspension or repeal of the 2015

ELGs in violation of 5 U.S.C. § 553, this Court should not allow the Notice to be afforded the

“force [or] effect of law.” Fertilizer Inst. v. U.S. E.P.A., 935 F.2d at 1312 (quoting Chrysler Corp.

v. Brown, 441 U.S. at 313) (internal quotations and citations omitted). Like the Becerra court, this

Court should prevent yet another federal agency from flouting the requirements of the APA

without being held to account. EPA has acted outside the bounds of its statutory limitations by

attempting to make and end run around the APA and its April 25, 2017 should accordingly be set

aside pursuant to 5 U.S.C. § 706(2)(C).

25

III. EPA REGION XII PROPERLY RELIED ON BEST PROFESSSIONAL

JUDGMENT TO REQUIRE ZERO DISCHARGE OF COAL ASH TRANSPORT

WASTES, INDEPENDENT OF THE APPLICABILITY OF THE 2015 ELG.

Reliance on Best Professional Judgment (BPJ) is justified even if the 2015 ELGS are not

in effect. Use of BPJ for pollutants not covered by the ELGs for an industry category “[w]here

promulgated effluent limitation guidelines only apply to certain aspects of a discharger's operation,

or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis.”

40 C.F.R. § 125.3(c)(3).

There is a lot of work that goes into conducting studies on industries to establish

technology-based effluent limitations, and because of this, limitation guidelines do not exist yet

for all industrial sources. § 7.37. Best Professional Judgment, 23 Wash. Prac., Environmental Law

and Practice § 7.37 (2d ed.). Also, sometimes an industrial process changes or new scientific

information is revealed, leading to the limitation guidelines no longer being appropriate. Id. Any

of these situations call for case-by-case effluent limits, and the EPA is allowed under federal law

to set these using Best Professional Judgment. Id., 33 U.S.C. § 1342(a); 40 C.F.R. § 125.3(c)(2).

Effluent limitations set using Best Professional Judgment involve engineers and economists to

determine what technology to use or control and at what cost. § 7.37. Best Professional Judgment,

23 Wash. Prac., Environmental Law and Practice § 7.37 (2d ed.).

In NRDC v. EPA, industry-wide, nationwide technology-based effluent limitations had not

yet been promulgated for drilling pollutant discharge. Nat. Res. Def. Council, Inc. v. U.S. E.P.A.,

863 F.2d 1420, 1424 (9th Cir. 1988). In that case, the court wrote that in that situation, the EPA

may establish effluent limitations on a case-by-case basis. Id.

26

None of the parties in the present case dispute that the runoff from the MEGS coal ash

pond is comprised in part of mercury, selenium, arsenic, and other toxic pollutants. These are not

regulated by the 1982 ELGS. Applying the rules from § 402(a)(1) of the Clean Water Act and the

logic from NRDC v. EPA, because the pollutants coming from the MEGS plant are not regulated

by the 1982 ELGS, it does not make a difference whether or not the 2015 Steam Electric Power

Generating Industry Effluent Limitation Guidelines are applicable or effective. Because these

pollutants did not have a concrete limitation set in stone in the 1982 ELGs, if in the EPA’s “best

professional judgment,” a zero-discharge requirement is the appropriate limitation, that should be

the rule. Thus, EPA may rely on Best Professional Judgment as an alternative ground to require

zero discharge of coal ash transport wastes.

IV. NPDES PERMITTING REQUIREMENTS APPLY TO ENERPROG’S

OUTFLOW-8, WHICH DISCHARGES POLLUTANTS INTO THE MEGS ASH

POND.

As discussed in depth above, the APA’s model of rulemaking is a methodical process with

safeguards meant to prevent or curb abuses of administrative authority. Under § 553 of the APA,

agencies are required to engage in two practices before promulgating a rule. First, “[g]eneral

notice notice of proposed rule making shall be published in the Federal Register.” 5 U.S.C. §

553(b). Second, after notice, the “agency shall give interested persons an opportunity to participate

in the rule making through submission of written data, views, or arguments” and “[a]fter

consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a

concise general statement of their basis and purpose.” 5 U.S.C. § 553(c).

New rules that work substantive changes in prior regulations” are subject to the APA’s

notice and comment procedures. Sprint Corp. v. F.C.C., 315 F.3d 369, 374 (D.C. Cir. 2003); see

also Marshall v. Western Union Tel. Co., 621 F.2d 1246, 1250 (3d Cir. 1980). “Conversely [to an

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interpretative rule], a legislative or substantive rule is one that does more than simply clarify or

explain a regulatory term, or confirm a regulatory requirement, or maintain a consistent agency

policy.” Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 237 (D.C.

Cir. 1992). A rule is considered legislative “if by its action the agency intends to create new law,

rights or duties.” United Techs. Corp. v. E.P.A., 821 F.2d 714, 718 (D.C. Cir. 1987) (quoting

General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir. 1984) (en banc), cert.

denied, 471 U.S. 1074, (1985)) (internal quotation marks omitted); see also Pickus v. United States

Bd. of Parole, 507 F.2d 1107, 1113 (D.C.Cir. 1974). “Thus, a rule is legislative if it attempts ‘to

supplement [a statute], not simply to construe it.’” Nat'l Family Planning & Reprod. Health Ass'n,

Inc. v. Sullivan, 979 F.2d 227, 237 (D.C. Cir. 1992) (quoting Chamber of Commerce v. OSHA, 636

F.2d 464, 469 (D.C.Cir. 1980)) (citations omitted). “[I]f a second rule repudiates or is

irreconcilable with a prior legislative rule, the second rule must be an amendment of the first; and,

of course, an amendment to a legislative rule must itself be legislative.” Sprint Corp. v. F.C.C.,

315 F.3d 369, 374 (D.C. Cir. 2003) (quoting National Family Planning & Reproductive Health

Ass'n v. Sullivan, 979 F.2d 227, 235 (D.C. Cir. 1992) (quotations and citations omitted)). “[O]nce

a regulation is adopted by notice-and-comment rulemaking,” substantive changes to the

regulation’s text “may be changed only in that [same] fashion.” Homemakers N. Shore, Inc. v.

Bowen, 832 F.2d 408, 413 (7th Cir. 1987).

“Ordinarily, when a regulation is not promulgated in compliance with the APA, the

regulation cannot be ‘afforded the force and effect of law.’” Fertilizer Inst. v. U.S. E.P.A., 935

F.2d 1303, 1312 (D.C. Cir. 1991) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 313 (1979))

(internal quotations and citations omitted). Accordingly, if a court finds that an agency violates

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the notice and comment provisions of § 553 when promulgating a rule, then the rule may be

vacated. Nat. Res. Def. Council v. E.P.A., 643 F.3d 311, 320–21 (D.C. Cir. 2011).

In the present case, EPA provides that the applicable definition of “waters of the United

States under the Clean Water Act means “[a]ll waters which are currently used, were used in the

past, or may be susceptible to use in interstate or foreign commerce . . . .” 40 C.F.R. § 122.2

(1983). It also includes “[a]ll impoundments of waters otherwise identified as waters of the United

States under this section.” Id. Waste treatment systems (“WTS”) are exempted under subsection

(2) which includes “treatment ponds or lagoons designed to meet the requirements of the Clean

Water Act.” Id. The regulation continues, applying the exclusion “only to manmade bodies of

water which neither were originally created in waters of the United States (such as disposal area

in wetlands) nor resulted from the impoundment of waters of the United States.” Id. (citing to

Note 1 of the section). Note 1 states that at “45 FR 48620, July 21, 1980, the Environmental

Protection Agency suspended until further notice in § 122.2, the last sentence, beginning ‘This

exclusion applies ___’ in the definition of ‘Waters of the United States.’ This revision continues

that suspension.” Id.

In 45 Fed. Reg. 48620, the EPA stated that its purpose for the last sentence was “to ensure

that dischargers did not escape treatment requirements by impounding waters of the United States

and claiming the impoundment was a waste treatment system, or by discharging wastes into

wetlands.” See Consolidated Permit Regulations, 45 Fed. Reg. at 48620. The EPA claimed that

they had amended the definition because industries had objected to the definition of the Waters of

the United States on the grounds that “the language of the regulation would require them to obtain

permits for discharges into existing waste treatment systems, such as power plant ash ponds, which

had been in existence for many years,” and that in many cases, the EPA had “issued permits for

29

discharges from, not into, these systems.” Id. The EPA agreed that “the regulation should be

carefully re-examined and that it may be overly broad” and suspended the sentence which qualified

WTS as waters of the United States when they had been created from impounding WotUS. Id.

Accordingly, the Agency is today suspending its effectiveness. The EPA stated that it intended to

promptly “develop a revised definition and to publish it as a proposed rule for public comment”

and at the conclusion “that rulemaking, EPA will amend the rule, or terminate the suspension.”

Id. 45 Fed. Reg. 48620 then held that the EPA had “[a]mended” 40 C.F.R by suspending the last

sentence beginning with "This exclusion applies,” until further notice. Id.

In the present case, the EPA made a legislative rule. By removing the applicability of the

last sentence of 45 Fed. Reg. 48620 and thus exempting all waste treatment systems (WTS), EPA

made a substantive change to a prior regulation. After considering only unsolicited objections to

the new regulation from industries, EPA suspended the last sentence, and therefore amended the

rule, stating that “the regulation should be carefully re-examined” because “it may be overly

broad.” In doing so, EPA did not “clarify” or “explain” a term, nor did EPA “confirm” a

requirement. See Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227,

237 (D.C. Cir. 1992). If anything, the suspension was indicative of furthering an inconsistent

agency policy, not one which was “consistent.” Id. EPA’s action created “new law” by exempting

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

States” from NPDES permitting requirements. United Techs. Corp. v. E.P.A., 821 F.2d 714, 718

(D.C. Cir. 1987). This action created a “right” for industry owners to not comply with the

permitting procedures for any waste treatment system created from original waters of the United

States. Id. 45 Fed. Reg. 48620 represents “a second rule” which “repudiate[d]”, and thus was

“irreconcilable” with, the “prior legislative rule”, 45 Fed. Reg. 33424. See Sprint Corp. v. F.C.C.,

30

315 F.3d 369, 374 (D.C. Cir. 2003). Therefore, 45 Fed. Reg. 48620 “must be an amendment of”

45 Fed. Reg. 33424, and “an amendment to a legislative rule must itself be legislative.” Id.

As 45 Fed. Reg. 33424 was “adopted by notice-and-comment rulemaking,” when EPA

promulgated 45 Fed. Reg. 48620, a substantive change to the text of 45 Fed. Reg. 33424, it was

supposed to make such changes “only in [the same] fashion” of notice-and-comment rulemaking.

See Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987).

EPA did not provide the public with either notice or the opportunity to comment. Under 5

U.S.C. § 551(5), a rule-making occurs whenever an agency amends or repeals a rule. EPA itself

labelled the rule as “amended” in 45 Fed. Reg. 48620. Merely because the suspension has been

included within two subsequent definitions does not excuse EPA from notice and comment

requirements whenever it amended the rule. As EPA listened to the concerns of industries by

amending the rule, EPA should have also given the public an opportunity to comment on their

proposed determination before finalizing the rule. By doing so, it would have allowed citizens the

chance to voice alternatives, such as requiring industries to line any ponds or lagoons within a

WTS, and in the absence of such lining, then those WTS would be considered WotUS.

Therefore, the 45 Fed. Reg. 48620 should be vacated because EPA did not promulgate the

amendment by the required procedures under APA § 553. Keeping the rule in place while EPA

provides the “proper procedural remedy” is not necessary, as it would only subject those applicable

WTS to permitting requirements which they have gratuitously been exempted from for 37 years.

If EPA wishes to enact the same rule, it must give the public an opportunity to comment on their

decision.

31

Accordingly, 45 Fed. Reg. 48620 should be struck down because it cannot be “afforded

the force and effect of law.” See Fertilizer Inst. v. U.S. E.P.A., 935 F.2d 1303, 1312 (D.C. Cir.

1991). As a result, EnerProg should have to attain a § 402 permit for OF-8 at MEGS.

V. THE ASH POND CLOSURE AND CAPPPING PLAN REQUIRES A PERMIT FOR

THE DISCHARGE OF FILL MATERIAL PURSUANT TO SECTION 404 OF THE

CWA.

A. The Lack of a Recapture Provision Will Not Prevent the Coal Ash Pond from

Becoming Subject to Section 404 of the CWA.

The EAB’s finding that the “40 C.F.R. section 122.2 exemption for waste treatment

systems does not contain any recapture provision that would convert [the coal ash ponds] back into

waters of the United States upon their retirement,” R. at 13, demonstrates what appears to be a

fundamental misconception regarding the role of recapture provisions in the CWA. A brief

examination of the recapture provision in section 404 of the CWA should shed light on the EAB’s

misunderstanding. The section 404 recapture provision, CWA § 404(f)(2), 33 U.S.C. § 1344(f)(2)

acts in close concert with the major section 404 exemptions found at CWA § 404(f)(1), 33 U.S.C.

§ 1344(f)(1). Former Senator Edmund Muskie, a sponsor of the legislation that added these

exemptions described them as such:

New subsection 404(f) provides that Federal permits will not be required for those

narrowly defined activities that cause little or no adverse effects either individually

or cumulatively. While it is understood that some of these activities may necessarily

result in incidental filling and minor harm to aquatic resources, the exemptions do

not apply to discharges that convert extensive areas of water into dry land or impede

circulation or reduce the reach or size of the water body.”

3 Leg.Hist. 474 (1977). In contrast, “[s]ection (f)(2), the ‘recapture provision,’ seizes upon certain

activities which on their face appear exempt in order to bring them back under the statute.” United

States v. Cumberland Farms of Connecticut, Inc., 647 F.Supp 1166, 1176 (D. Mass., 1986). Thus,

32

the recapture provision is necessary to preserving the intentionally narrow scope of the exemptions

with which it is paired.

Compared to the 404(f)(1) exemptions, the 40 C.F.R. § 122.2 exemption is significantly

broader in scope. In fact, the indefinite stay which FCW vigorously opposes makes the exemption

even broader than originally designed. R. at 12. Additionally, no recapture provision is needed in

the 40 C.F.R. § 122.2 exemption because, unlike the 404(f)(2) exemption, there is no need for a

strong deterrence against those who would take advantage of the exemption. EnerProg is, after

all, only closing and capping its ash pond because it is under a state mandate to do so. These

distinctions matter because the Court should not assume that because recapture provisions are

necessary in one context that they are necessary in another. For example, once the EnerProg coal

ash pond can no longer be accurately characterized as a waste treatment system, there will be no

statutory or regulatory basis on which to subject the pond to the 40 C.F.R. § 122.2 exemption.

B. The Abandoned Coal Ash and the Cap Material Deposited on the Coal Ash

Pond Will Subject the Closure and Capping Plant to CWA Section 404 Permit

Requirements.

As FCW has contended before, both coal ash and cap material meet the regulatory

definition of “fill.” “The term fill material means material placed in waters of the United States

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

dry land; or (ii) Changing the bottom elevation of any portion of a water of the United States.” 33

C.F.R. § 323.2. Both coal ash and the cap fill material will replace portions of Fossil Creek and an

adjoining creek with dry land and change the bottom elevation. As such, the filling and capping

the ash pond will require a fill permit pursuant to 33 U.S.C. § 1344.

33

CONCLUSION

For the foregoing reasons, Petitioner, Fossil Creek Watchers, Inc. respectfully requests

that this court remand the EnerProg NPDES permit for further consideration.

Respectfully Submitted,

__________________________

Attorneys for Petitioner

November 27, 2017 Fossil Creek Watchers, Inc.