C.A. No and UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT. ENERPROG, L.L.C., Petitioner,

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1 Team No. 54 C.A. No and UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT ENERPROG, L.L.C., Petitioner, and FOSSIL CREEK WATCHERS, INC., Petitioner, vs. UNITED STATES ENVIRONMENTAL PROTECTIONS AGENCY, Respondent. On Appeal from the Environmental Appeals Board of the United States Environmental Protection Agency, Washington, D.C. NPDES Appeal No Brief of Petitioner, Fossil Creek Watchers

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv GLOSSARY... ix STATEMENT OF JURISDICTION...1 STATEMENT OF ISSUES FOR REVIEW...1 STATEMENT OF THE CASE...2 A. Statement of Facts Moutard Electric Generating Station (MEGS) Operation State Requirements for the Renewal of MEGS s NPDES Permit The Final Rule Impact on MEGS...5 B. Procedural History...7 SUMMARY OF THE ARGUMENTS...7 ARGUMENTS...7 STANDARD OF REVIEW...9 I. 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....9 A. The EPA was Required to Include All Such Progress Certification Conditions Because the EPA Does Not Have Jurisdiction to Review the Appropriateness of State Conditions....9 B. The Ash Pond Closure and Remediation Conditions Constitute Appropriate Requirements of State Law but Independently Violate the Requirement for a CWA Section 404 Permit The United States Supreme Court has given states broad authority in determining what constitutes appropriate requirements of State law and this Court should follow established precedent The ash pond closure and remediation conditions require a CWA section 404 permit II. EPA CANNOT INVOKE SECTION 705 AFTER THE 20l5 ELGS COMPLIANCE DATES A. The Plain Language of Section 705 Does Not Authorize the Extension of Compliance Dates, Only Effective Dates B. The EPA Failed to Satisfy the Four-Part Test for an Indefinite Stay under 5 U.S.C ii

3 III. EPA REGION XII COULD RELY ON THE BEST PROFESSIONAL JUDGMENT AS AN ALTERNATIVE GROUND FOR REQUIRING ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES IV. NPDES PERMITTING REQUIREMENTS DO APPLY TO ENERPROG S POLLUTANT DISCHARGES INTO THE MEGS ASH POND, BECAUSE EPA S JULY 21, 1980 SUSPENSION OF PROVISIONS OF 40 C.F.R DID NOT FOLLOW THE REQUIREMENTS OF 5 U.S.C. 553(b)-(d), AND THUS WAS ARBITRARY AND CAPRICIOUS UNDER 706(2)(A) A. Rescission, and Suspension, of an Agency Rule is Subject to the Same Review as Rule Promulgation B. The Four Statutory Exceptions to 553 Do Not Apply in this Case C. The Third Circuit s Opinion in NRDC v. EPA is Illustrative for the Case at Bar D. EPA Similarly Seeks to Avoid Necessary 553 Procedures Here by Using the Label Suspension V. THE CLOSURE AND CAPPING OF THE MEGS ASH POND REQUIRES A PERMIT FOR THE DISCHARGE OF FILL MATERIAL PURSUANT TO SECTION 404 OF THE CWA A. The Language and Policy of the CWA Support Requiring EnerProg to Obtain a Dredge or Fill Permit CONCLUSION...31 iii

4 TABLE OF AUTHORITIES United States Supreme Court Cases Bates v. United States, 522 U.S. 23 (1997) Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)... 21, 22 Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407 (1942) Encino Motorcars, LLC v. Navarro, 136 S. Ct (2016) EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976) EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200 (1976) FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)... 17, 21 Mass. v. EPA, 549 U.S. 497 (2007) Motor Vehicle Mfr.'s Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)... 21, 22 PUD No. 1 of Jefferson Cty. v. Wash. Dep t of Ecology, 511 U.S. 700 (1994)... 11, 12, 13, 14 Rapanos v. United States, 547 U.S. 715 (2006) Solid Waste Agency of N. Cook Cty. (SWANCC) v. United States Army Corps of Eng'rs, 531 U.S. 159 (2001)... 29, 30, 31 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)... 30, 31 Winter v. NRDC, 555 U.S. 7 (2008) Federal Cases American Fed n of Gov t Emps. v. Block, 655 F.2d 1153 (D.C. Cir. 1981)... 23, 25 American Hosp. Ass n. v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) , 24, 25, 28 American Mining Congress v. Mine Safety & Health Admin, 995 F.2d 1106 (D.C. Cir. 1993) American Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir. 1997) Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980)... 24, 28 iv

5 Consumer Energy Council of America v. FERC, 673 F.2d 425 (D.C. Cir. 1982) Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C. Cir. 1973) EDF v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) Gibson Wine Co. v. Snyder, 194 F.2d 329 (D.C. Cir. 1952) In re Pub. Serv. Co. of N. H., 1 E.A.D. 389, 1977 WL (1977)... 17, 22 Jicarilla Apache Nation v. U.S. Dept. of Interior, 613 F.3d 1112 (D.C. Cir Joseph v. FCC, 404 F.2d 207 (D.C. Cir. 1968) League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016) Miccosukee Tribe of Indians of Fla. v. United States, 2008 U.S. Dist. LEXIS (S.D. Fla.) 23 N.J. Dep t. of Envtl. Prot. v. EPA, 626 F.2d 1038 (D.C. Cir. 1980) Nat'l Sec. Counselors v. CIA, 931 F. Supp. 2d 77 (D.C. Cir. 2013) NRDC v. EPA, 683 F.2d 752 (3d Cir. 1982)... passim NRDC v. SEC, 606 F.2d 1031 (D.C. Cir. 1979) Pac. Gas & Elec. Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974) Pursuing America s Greatness v. FEC, 831 F.3d 500 (D.C. Cir. 2016) Richardson v. United States Customs Serv., 47 F.3d 415 (Fed. Cir. 1995) Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041 (1st Cir. 1982) Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir. 1979) Sierra Club v. Jackson, 833 F. Supp. 2d 11 (D.D.C 2012)... 16, 18 Sierra Club v. Jackson, 833 F. Supp. 2d 11 (D.D.C. 2010) Silverman v. Eastrich Multiple Inv r Fund, L.P., 51 F.3d 28 (3d Cir. 1995) Southeast Resource Recovery Facility Auth. v. Montenav Int l Corp., 973 F.2d 711 (9th Cir. 1992)... 9 v

6 Southwestern Electric Power Co., et al. v. EPA, No State Cases Arnold Irrigation Dist. v. Dep t of Envtl. Quality, 717 P.2d 1274 (Or. Ct. App. 1986) Federal Statutes 5 U.S.C. 551 (2012) U.S.C. 553 (2012)... 21, 23, 25 5 U.S.C. 701 (2012) U.S.C. 705 (2012) U.S.C. 706 (2012) U.S.C. 402 (2012) U.S.C. 509 (2012) U.S.C (2012)... 2, 12, U.S.C (2012)... 2, 12, U.S.C (2012) U.S.C (2012)... 10, U.S.C (2012).... 2, 18, 19, U.S.C (2012)... 2, U.S.C (2012) U.S.C 1369 (2012) U.S.C (2012) Regulations and Administrative Materials 33 C.F.R. 323 (2008) C.F.R. 323 (2017) vi

7 33 C.F.R. 328 (2015)... 30, C.F.R. 121 (1993) C.F.R. 122 (2015) C.F.R. 124 (2017) C.F.R. 125 (2017)... 16, 18, C.F.R 423 (2016) C.F.R. 423 (Sept. 18, 2017)... 6 Federal Register Notices 45 Fed. Reg. 33, 424 (May 19, 1980) Fed. Reg. 48,620 (July 21, 1980) Fed. Reg. 14,153 (April 1, 1983) Fed. Reg. 37,114 (June 29, 2015) Fed. Reg. 67,838 (Nov. 3, 2015)... 4, 6 82 Fed. Reg. 19, 005 (Apr. 25, 2017)... 6, 7, 8 Other Authorities Black s Law Dictionary (10th ed. 2014) Environmental Assessment for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category ( Final EA ), Sept. 2015, Docket ID No. EPA-HQ-OW , available at 2 EPA, Steam Electric Power Generating Effluent Guidelines Final Rule, Effluent Guidelines (Sept. 18, 2017), 6 H.R. Conf. Rep. No (1977), U.S. Code Cong. & Admin. News Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N. D. L. Rev. 873 (1993) vii

8 S. Conf. Rep. No (1972) United States Nuclear Regulatory Commission: NRC Library (last updated Apr. 10, 2017) 4 viii

9 GLOSSARY APA Corps BAT CWA CACA EAB ELG(s) EPA MW MGD MEGS NPDES Administrative Procedure Act Army Corps of Engineers Best Available Technology Economically Achievable Clean Water Act Progress Coal Ash Cleanup Act Environmental Appeals Board Effluent Limitations Guidelines Environmental Protection Agency Megawatts Million Gallons per Day Moutard Electric Generating Station National Pollutant Discharge Elimination System ix

10 STATEMENT OF JURISDICTION This case concerns the application of the Clean Water Act ( CWA ), 33 U.S.C 1369(b) (2012). Jurisdiction was proper in the Environment Appeals Board (EAB) of the United States Environmental Protection Agency (EPA) pursuant to 33 U.S.C. 509(b) (2012). This Court has jurisdiction over this appeal from the final order of the EAB. Id.; see also R. at 2. 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW I. 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 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). II. Whether the April 12, 2017, EPA Notice suspending certain future compliance deadlines for the 2015 Final Effluent Limitations 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 applicability or effectiveness of the 2015 Steam Electric Power Generating Industry Effluent Limitation Guidelines. IV. Whether NPDES permitting requirements apply to EnerProg, L.L.C 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 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 The citations R. at refer to pages of the Final Problem, Revised on October 24,

11 STATEMENT OF THE CASE This case concerns EPA s failure to fully protect the people of Progress and the environment from toxic water pollution as required by the CWA. Although the Act s primary goal includes eliminating pollution discharged into our nation s waterways, EPA Region XII issued a NPDES permit to EnerProg, L.L.C ( EnerProg ) that allows for the continued pollution of Fossil Creek. See 33 U.S.C. 1251(a)(1) (2012). As a result of EnerProg being an industrial source of water pollution in Fossil Creek 2, Fossil Creek Watchers, Inc. ( FCW ) challenges the NPDES permit because it illegally authorizes the abandonment and capping of EnerProg s remaining coal ash pond without a dredge or fill permit issued. 33 U.S.C (2012). Additionally, because the ash pond was historically part of Fossil Creek 3, the interim discharge of untreated coal ash waste into the ash pound is itself a violation of the CWA section 301 provisions--requiring technology and water quality based effluent limits and section 402 provisions requiring NPDES permitting--for all discharges to waters of the United States. 33 U.S.C. 1311, 1342 (2012). A. Statement of Facts FCW s mission is to practice and promote the responsible use of Fossil Creek s ecosystem and resources. Pursuant to that mission, FCW monitors federal NPDES permits issued to electrical power plants located in Fossil, which includes EnerProg. On January 18, 2 As an industry, power plants discharge more toxic water pollution (defined by EPA as toxic weighted pound equivalents ) than any other industrial point source category in the United States. Environmental Assessment for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category ( Final EA ), Sept. 2015, Docket ID No. EPA-HQ-OW , Table 3-3, available at 3 Fossil Creek does not discharge to the Moutard Reservoir, but is a perennial tributary to the Progress River, a navigable-in-fact interstate body of water. 2

12 2017, EPA Region XII issued a NPDES permit to EnerProg authorizing it to continue water pollution discharges associated with the operation of its coal-fired steam electric power plant, the MEGS. R. at Moutard Electric Generating Station (MEGS) Operation Based on its current operations, the MEGS facility is subject to EPA effluent limitation guidelines per 40 C.F.R Steam Electric Power Generating Point Source Category. R. at 7. The MEGS plant operates by withdrawing less than 125 MGD of water directly from the Moutard Reservoir to use for the evaporative losses from the cooling tower, boiler water, ash transport water, and drinking water needs. After the heat generated by burning coal transforms boiler water into steam, the steam drives turbines connected to electric generators that produce a maximum dependable capacity of 745 MW per unit. 4 4 Maximum dependable capacity is the maximum amount of electricity that the main generating unit of a nuclear power reactor can reliably produce during the summer or winter. The dependable capacity varies during the year because temperature variations in cooling water affect 3

13 As a result of this process, MEGS produces wastewater in the form of chemical pollutants and thermal pollution (heated water) from its water treatment, power cycle, ash handling, air pollution control systems, as well as from coal piles, yard, and floor drainage. See 40 C.F.R 423 (2016). Wastewater discharged by power plants, like MEGS, can contain toxic metals such as mercury, arsenic, and selenium, as well as nonconventional pollutants such as nitrogen and dissolved solids that contaminate drinking water and harm ecosystems. Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 80 Fed. Reg. 67,838 (Nov. 3, 2015). The pollutants present in wastewater discharged by power plants can cause several types of cancer, deformities and reproductive harm to fish and other wildlife, and lower children s IQs, among other things. Id. In an attempt to limit the pollution discharge, MEGS operates five separate outfalls for waste. 5 After running several treatment systems to reduce the amount of coal ash 6 in the waste, most of these outfalls discharge directly or indirectly into the Moutard Reservoir, a newly lined retention basin, or an ash pond created by damming the then free-flowing upper reach of Fossil Creek in June R. at 7-8. At this time however, the MEGS coal ash pond contains elevated the unit's efficiency. Thus, this is the gross electrical output as measured (in watts) at the output terminals of the turbine generator. United States Nuclear Regulatory Commission: Glossary, NRC Library (last updated Apr. 10, 2017) 5 An industrial outfall is the point where storm water associated with industrial activity discharges to waters of the United States or a municipal separate storm sewer system (MS4). An outfall does not include conveyances, pipes or tunnels connecting segments of the same system. The facility s outfall is considered to be the location where the discharges leave the industrial site. See 40 C.F.R (b)(9) (2015). 6 During coal combustion, large amounts of ash are created along with carbon dioxide and other gases. The fine particle ash that rises up with the flue gases is known as fly or flue ash while the heavier ash that does not rise is called bottom ash; collectively these are known as coal ash. See 40 C.F.R (2016). 4

14 toxic pollutant levels of mercury, arsenic, and selenium. R. at State Requirements for the Renewal of MEGS s NPDES Permit In considering a renewal of the MEGS NPDES permit, the State of Progress issued a certification pursuant to CWA section 401 and the Progress Coal Ash Cleanup Act (CACA). R. at 8. CACA is a state-enacted law requiring assessment, closure, and remediation of substandard coal ash disposal facilities in the State of Progress. Id. The CACA legislation aims to prevent public hazards associated with the failures of ash treatment pond containment systems, as well as any leaks from these treatment ponds into ground and surface waters. R. at 8-9. In accordance with CWA section 401(d), these Progress requirements are incorporated as additional conditions to a NPDES permit. R. at 9. The State of Progress determined that the MEGS NPDES permit must contain limits for toxic pollutants actually present in the discharge based on the Best Available Technology (BAT). Id. As evident in the 2015 ELGs, the State argues EPA staff determined that dry handling of bottom ash and fly ash has been in use at existing plants in the industry for many years. Id. Accordingly, a permit writer in the exercise of his best professional judgment determined that zero discharge of ash handling wastes by November 1, 2018, constitutes BAT for discharges associated with coal ash wastes. Id. Therefore, in order to comply with the CACA, EnerProg must cease operation of its ash pond by November 1, 2018, complete dewatering of the pond by September 1, 2019, and cover the dewatered ash pond with an impermeable cap by September 1, R. at The Final ELG Rule Impact on MEGS In 1982, current regulations for steam electric power plants were last updated, but failed to adequately address toxic metal discharges. EPA, Steam Electric Power Generating Effluent Guidelines Final Rule, Effluent Guidelines (Sept. 18, 2017), 5

15 Rather, the 1982 rule focused on settling out particulates rather than treating dissolved pollutants. Id. As new technologies for generating electric power developed, widespread implementation of air pollution controls altered existing wastewater streams or created new wastewater streams at many power plants, particularly coal-fired plants. The 2015 rule addressed these changes in the industry. Id. On November 3, 2015, EPA published a notice issuing the final Effluent Limitations Guidelines Rule for the steam electric industry. 80 Fed. Reg. 67,838. For existing power plants that discharge directly to a waterbody, each plant s NPDES permitting authority set the compliance dates for the BAT limits for fly ash, bottom ash, and flue gas desulfurization (FGD) wastewater. 80 Fed. Reg. 67,854; 40 C.F.R (Sept. 18, 2017). For MEGS, its compliance date under federal law was as soon as possible beginning November 1, 2018 (similar to the CACA legislation) At that time, EPA also calculated that the final ELG Rule would prevent 1.4 billion pounds of pollutants from being discharged into our nation s waterways every year. 80 Fed. Reg. 67,841. However, more recently, EPA Administrator, Scott Pruitt, announced the agency s postponement of the compliance dates that have not yet passed in an ELG Rule under the CWA on April 12, Postponement of Certain Compliance Dates for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 19, 005, 19,006 (Apr. 25, 2017). Specifically, for existing plants like MEGS, which are direct and indirect dischargers, EPA postponed the deadlines for meeting the new standards for fly and bottom ash, FGD wastewater, flue gas mercury control, and gasification wastewater. Id. The EPA notice cited 5 U.S.C. 705 as authority for the stay and stated that the Agency finds that justice 6

16 requires it to postpone the compliance dates of the Rule that have not yet passed, pending judicial review. Id. The notice did not mention the four-part test for a preliminary injunction, nor did the notice attempt to demonstrate that the four-part test for a preliminary injunction is satisfied. See id. 19, Further, the EPA did not provide interested persons with an opportunity to comment on the indefinite stay of ELG compliance deadlines prior to publishing the notice of the indefinite stay in the Federal Register on April 25, See id. In response to this EPA notice, these regulations have been challenged in the U.S. Court of Appeals for the Fifth Circuit. Southwestern Electric Power Co., et al. v. EPA, No Here, EnerProg asserts that the effect of the suspension notice relieves it from the compliance with the November 1, 2018 deadline for achieving zero discharge of coal ash-related effluents under state and federal law. R. at 11. B. Procedural History On January 18, 2017, EPA Region X11 issued a NPDES permit to EnerProg pursuant to CWA section 402. On April 1, 2017, pursuant to 40 C.F.R. 124, FCW and EnerProg filed petitions for review of the NPDES permit requesting that the permit be remanded to Region XII for further consideration. During the Spring Term of 2017, the EAB denied both petitions for review. Subsequently, pursuant to CWA section 509(b), FCW and EnerProg filed timely petitions with this Court seeking judicial review of the final decision of the EAB. SUMMARY OF THE ARGUMENTS First, state courts have the authority to determine the appropriateness of state conditions not the EPA. Moreover, CWA section 401(d) grants states the authority to impose any limitations needed to maintain acceptable water-quality standards and CWA section 404 requires permits for any activities involving dredged or fill material. The ash pond closure and 7

17 remediation conditions involve fill material and have been implemented to help maintain waterquality standards in the State of Progress. Therefore, although the ash pond closure and remediation conditions are appropriate requirements of state law, a CWA section 404 permit is still required. Second, contrary to EnerProg s assertions, section 705 does not permit EPA to postpone future compliance deadlines for the 2015 Steam Electric Power Generating Point Source Categories ELGS following a rule s effective date. R. at 11; 82 Fed. Reg Specifically, the plain language of section 705 authorizes postponement of the effective date, not compliance dates. Allowing an agency to postpone the 2015 ELG compliance dates after that rule has gone into effect violates section 705 s purpose of maintaining the regulatory status quo. EPA also failed to satisfy the four-part test for a stay under 5 U.S.C Third, the MEGS coal ash pond contains toxic pollutants that were not regulated by the 1982 ELGs. As a result, reliance on a permit writer s best professional judgment is justified even if this Court finds that the 2015 ELGs were eliminated or vacated. Fourth, NPDES permitting requirements do apply to EnerProg s pollutant discharges into the MEGS ash pond. EPA s July 21, 1980, suspension--in effect a rescission--of provisions of 40 C.F.R , which would exempt ash ponds such as the one at the MEGS, did not follow the rulemaking requirements of the APA 553(b)-(d). Thus, the suspension was arbitrary and capricious under 706(2)(A), and the agency must follow proper 553 rulemaking procedure before it can suspend provisions of 40 C.F.R Lastly, the closure and capping of the MEGS ash pond requires a permit for the discharge of fill material pursuant to section 404 of the CWA. The Corps broad charge in administering section 404, as well as the expansive definition and legislative history of navigable waters 8

18 under the CWA, support the inclusion of the closed ash pond within the regulatory reach of section 404. ARGUMENTS STANDARD OF REVIEW This case presents questions of law involving the extent of the Clean Water Act. Such questions are subject to de novo review by this Court. Southeast Resource Recovery Facility Auth. v. Montenav Int l Corp., 973 F.2d 711, 713 (9th Cir. 1992). I. 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. The ash pond closure and remediation conditions were properly included in the Final Permit. First, the authority to determine the appropriateness of state conditions lies with the state courts not with EPA. Second, under CWA section 401(d), CACA and the ash pond closure and remediation conditions are appropriate requirements of State law because the purpose of their implementation is to help maintain water quality standards. Last, because compliance with the conditions will result in the discharge of dredge or fill materials into navigable waters, a CWA section 404 permit is required. A. The EPA was Required to Include All Such Progress Certification Conditions Because the EPA Does Not Have Jurisdiction to Review the Appropriateness of State Conditions. The EPA does not have jurisdiction to determine the appropriateness of the state conditions in CWA section 401 certifications and, therefore, was required to include all such Progress certification conditions. Any certification approved under CWA section 401(d) must set forth any requirements necessary to ensure compliance with CWA sections 1311, 1312, 1316, and 1317, and any additional appropriate requirements of State law. 33. U.S.C. 1341(d) (2012). If the state s 9

19 conditions have anything to do with water quality, the validity of such conditions can only be challenged in a court of appropriate jurisdiction. American Rivers, Inc. v. FERC, 129 F.3d 99, 106 (2d Cir. 1997). Moreover, any state conditions shall become a condition on any Federal license or permit. 33. U.S.C. 1341(d) (emphasis added); see American Rivers, 129 F.3d at 106. Thus, it is not the EPA Administrator who has the authority to review the appropriateness of the conditions, but rather the state courts. See 1341(d). The Administrator only has the authority to approve or deny the overall application. See Id. Further, the EPA published 40 C.F.R (e) which provides that [r]eview and appeals of limitations and conditions attributable to State certification shall be made through the applicable procedures of the State. Courts have consistently affirmed that state court is the appropriate forum for reviewing the appropriateness of a state certification and that federal courts and agencies do not have authority to review the validity of the requirements. Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, (1st Cir. 1982); see American Rivers, 129 F.3d at 106. The EAB was correct in concluding that the EPA has no discretion to reject a condition included in a State section 401 condition. R. at 11. The ash pond closure and remediation conditions fall within the scope of section 401 certifications because they are related to water quality. When the EPA granted the permit, these Progress conditions became conditions on the Federal permit. Thus, a Progress court is now the appropriate forum for any review of the CWA section 401 permit conditions. It is immaterial whether Progress law does not provide for review of such certifications in the state s courts, because federal statutes and case law dictate that the authority to review and appeal state conditions in CWA section 401 permits lies with the state courts. R. at 11. Therefore, the State of Progress has jurisdiction to determine the appropriateness 10

20 of the conditions of the CWA section 401 certification not the EPA. B. The Ash Pond Closure and Remediation Conditions Constitute Appropriate Requirements of State Law but Independently Violate the Requirement for a CWA Section 404 Permit. The ash pond closure and remediation conditions are appropriate requirements of State law; however, a CWA section 404 permit is still required. The conditions at issue are imposed pursuant to CACA which is a State of Progress law enacted to maintain adequate water quality standards. While these conditions are appropriate requirements of State law, they involve the discharge of dredge or fill materials into navigable waters and therefore require a CWA section 404 permit. 1. The United States Supreme Court has given states broad authority in determining what constitutes appropriate requirements of State law and this Court should follow established precedent. This Court should follow precedent established by the United States Supreme Court and grant the State of Progress broad authority in concluding that the ash pond closure and remediation conditions constitute appropriate requirements of State law. When deciding whether a state condition in a CWA section 401 permit is an appropriate requirement of State law, the Supreme Court has interpreted section 401 broadly. PUD No. 1 of Jefferson Cty. v. Wash. Dep t of Ecology, 511 U.S. 700 (1994). In PUD No. 1, the question before the Supreme Court was whether a state imposed minimum stream flow requirement was a permissible condition of a CWA section 401 permit. Id. at 711. The court held that states can impose any necessary limitations to ensure compliance with state water-quality standards or other appropriate requirements of State law. Id. at Further, the court held that the minimum stream flow requirement at issue was appropriate under State law. Id. at 714. In order to reach these conclusions, the court looked to the CWA s statutory and regulatory language. Id. 11

21 Several enumerated sections of the CWA authorize states to impose water quality-related conditions. Each state is required, pursuant to CWA section 303 and subject to federal approval, to implement comprehensive water quality standards related to intrastate waters. 33 U.S.C (2012). The purpose of these standards is to protect the public health or welfare and enhance the quality of water. Id.; PUD No. 1, 511 U.S. at 704; see also 33. U.S.C. 1251(a)(2) (2012). Further, these stringent state water quality standards provide an additional basis for further regulation on various point sources despite compliance with other CWA sections. PUD No. 1, 511 U.S. at ; EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n.12 (1976). The additional regulations help keep water quality at or above acceptable levels. Id. The CWA lists only the minimum requirements of state water quality standards and states may impose more stringent water quality regulations. PUD No. 1, 511 U.S. at 705; see 33 U.S.C. 1311(b)(1)(C), 1370 (2012). In a case decided before PUD No. 1, the Oregon Court of Appeals looked to the overall purpose of the CWA and subsequently granted Oregon broad authority in implementing state conditions in CWA section 401 permits. Arnold Irrigation Dist. v. Dep t of Envtl. Quality, 717 P.2d 1274 (Or. Ct. App. 1986). The court acknowledged that a provision is an appropriate requirement of State law even if it is only slightly related to water quality. Id. Thus, the court recognized that many uses of land affect water quality even if they do not immediately result in direct discharges to the state s waters. Id. The court in PUD No. 1 stressed that although CWA section 401(a) relates to the regulation of discharges, section 401(d) provides that any certification shall set forth any effluent limitations and other limitations... necessary to assure that any applicant will comply with various provisions of the Act and any other appropriate requirement of State law. 33 U.S.C. 1341(d) (emphasis 12

22 added); PUD No. 1, 511 U.S. at 711. Thus, the language of section 401(d) expands a state s authority to impose conditions on all activities and not just those related to discharges. Id. at 712. Moreover, this broad interpretation is consistent with EPA s view of the statute. A state certification shall include: a statement that there is reasonable assurance that the activity will be conducted in manner which will not violate applicable water quality standards, a statement of conditions related to any discharge from the activity, and any other important information. 40 C.F.R (a)(3) (1993). The fact that the EPA requires a statement relating to discharges in addition to a statement assuring that the activity will comply with applicable water quality standards reconciles the interpretation that section 401 permits relate to any activity--not just discharges. PUD No. 1, 511 U.S. at 712 (emphasis added). In PUD 1, the United States Supreme Court determined that state limitations imposed pursuant to CWA section 303 are proper conditions under a section 401 permit. Id. at 713. Although section 303 is not a statutory provision listed under section 401(d), section 301 is a statutory listed provision. 33 U.S.C. 1341(d). Additionally, section 303 is always incorporated by reference within section 301. PUD No. 1, 711 U.S. at 713; see 33 U.S.C. 1311(b)(1)(C) (2012); see also H.R. Conf. Rep. No , p. 96 (1977), U.S. Code Cong. & Admin. News 1977, pp. 4326, 4471 ( Section 303 is always included by reference where section 301 is listed ). Therefore, conditions imposed pursuant to section 303 are among the other limitations which the state has authority to incorporate in a section 401 permit. PUD No. 1, 711 U.S. at 713. The State of Progress has enacted CACA, which requires assessment, closure, and remediation of substandard coal ash disposal facilities in the State of Progress. R. at 8. Progress enacted CACA 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. 13

23 R. at 8-9. In order to be an appropriate requirement of State law, CACA need only be minimally related to water quality protection. PUD No. 1, 711 U.S. at Here, CACA is an additional regulation whose purpose is to help maintain water quality standards of both ground and surface waters at or above acceptable levels. Thus, CACA is an appropriate requirement of State law. Moreover, EnerProg s assertions that CACA requirements are not based on achieving state water quality standards pursuant to CWA section 303 nor related to achieving effluent limitations, do not hold muster under the Supreme Court s holdings in PUD No. 1. In PUD No. 1, the Court heavily emphasized the effluent limitations and other limitations and any other appropriate requirement of State law phrases contained within CWA section 401(d). First, the inclusion of other limitations dictates that states can impose limitations beyond those that are directly related to achieving effluent limitations. Second, the inclusion of any other appropriate requirement of State law dictates that states are not constricted to only imposing limitations that relate to the statutorily-listed provisions (sections which incorporates 1313, 1312, 1316 and 1317). Thus, EnerProg s limited reading of CWA section 401(d) is in conflict with precedent established by the United States Supreme Court. 2. The ash pond closure and remediation conditions require a CWA section 404 permit. Abandonment and capping of the remaining coal ash pond as contemplated by the closure plan are illegal without a dredge or fill permit issued pursuant to CWA section 404. Please refer to section V of this brief for further briefing on the necessity of a CWA section 404 permit. II. EPA CANNOT INVOKE SECTION 705 AFTER THE 20l5 ELGS COMPLIANCE DATES. Contrary to EnerProg s assertions, section 705 does not permit EPA to postpone future compliance deadlines for the 2015 Steam Electric Power Generating Point Source Categories 14

24 ELGs following the rule s effective date. R. at 11; 82 Fed. Reg (Apr. 25, 2017). First, the plain language of section 705 authorizes postponement of the effective date, not compliance dates. Allowing an agency to postpone the 2015 ELG compliance dates after that rule has gone into effect violates section 705 s purpose of maintaining the regulatory status quo. Second, the EPA failed to satisfy the four-part test for a stay under 5 U.S.C A. The Plain Language of Section 705 Does Not Authorize the Extension of Compliance Dates, Only Effective Dates. Ordinarily, courts resist reading words or elements into a statute that do not appear on its face. Bates v. United States, 522 U.S. 23, 29 (1997). Largely because, allowing an agency to postpone a rule s compliance date after that rule has gone into effect violates section 705 s purpose of maintaining the regulatory status quo. See Sierra Club v. Jackson, 833 F. Supp. 2d 11, 28 (D.D.C. 2010). A rule s effective date is the initial point where the regulatory status quo takes on a new meaning. Thus, the effective date is the only date relevant to the purpose of section 705. Further, compliance date and effective date have distinct meanings. See Silverman v. Eastrich Multiple Inv r Fund, L.P., 51 F.3d 28, 31 (3d Cir. 1995) (a compliance date should not be misconstrued as the effective date. ). A rule s effective date is defined as the date upon which the rule becomes enforceable and adherence to it is required. See Effective Date, Black s Law Dictionary (10th ed. 2014) (defining effective date as the date on which a statute... becomes enforceable or otherwise takes effect ); NRDC v. EPA, 683 F.2d 752, 762 (3d Cir. 1982) (an effective date serves to implement, interpret, or prescribe law or policy ). Alternatively, a compliance date is the deadline by which a specific requirement of a regulation must be completed. See 40 C.F.R (i)(c) (2017). Here, the EPA and EnerProg argue that section 705 gives the April 12, 2017 Notice authority to require suspension of compliance deadlines. R. at 3. However, both parties ignore 15

25 that the only power granted by Section 705 is to postpone an effective date. 5 U.S.C. 705 (2012). Even though the agency s conception of justice so requires may be broad, section 705 permits do not provide additional relief, such as postponing a compliance date. See Id. While section 705 allows the postponement of the effective date of a broader range of agency actions than a complete rule, such as a part of a rule or a license, that does not alter the plain meaning of effective date. R. at 11. Thus, the agency would still need to take such action prior to the effective date of that rule or license, under the plain language of section 705. B. The EPA Failed to Satisfy the Four-Part Test for an Indefinite Stay under 5 U.S.C Under this provision of the APA, an agency may postpone the effective date of action taken by it, pending judicial review when it finds that justice so requires. 5 U.S.C As previously held in the District of Columbia Appeals Court, the standard for stay at the agency level is the same as the standard for a stay at the judicial level: each is governed by the four-part preliminary injunction test applied in this Circuit. Sierra Club v. Jackson, 833 F. Supp. 2d 11, 30 (D.D.C 2012). Thus, an agency must base any postponement of the effective date of a rule under 5 U.S.C. 705 on specific findings that (1) legal challenges to the agency action are likely to succeed on the merits; (2) there will be irreparable harm absent a stay; (3) this irreparable harm outweighs the denial of the rule s benefits during the stay; and (4) the public interest is served by a stay. Id.; See also League of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) ( A party seeking a preliminary injunction must make a clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest. (quoting Pursuing America s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). In addition, a former EPA Administrator in a previous EAB decision, announced that EPA 16

26 had to meet the same test as a court to stay a rule under 5 U.S.C In re Pub. Serv. Co. of N. H., 1 E.A.D. 389, 1977 WL (1977). Under EPA s past practice of applying the fourpart preliminary injunction test to requests for stays under 5 U.S.C. 705, EPA was required to acknowledge and justify its departure from the agency s past practice in order to lawfully issue an Indefinite Stay without meeting this standard. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (when an agency departs from its prior position, the agency must at least display awareness that it is changing position and show that there are good reasons for the new policy (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009))). Here, EPA s notice of the Indefinite Stay does not mention or consider any of the preliminary injunction factors by which seeking a preliminary injunction must establish that it is likely to succeed on the merits, that the company is likely to suffer irreparable harm in the absence of preliminary relief, and that an injunction is in the public interest. Winter v. NRDC, 555 U.S. 7, 20 (2008). Thus, the EPA notice of the Indefinite Stay fails to make any of the four findings necessary to stay a rule under 5 U.S.C The notice ignores both judicial precedent in Sierra Club v. Jackson, as well as the agency s well-established practice in other rules, that EPA must find that the four preliminary injunction factors are satisfied in order to stay a rule under 5 U.S.C Further, EPA s Indefinite Stay notice provides no justification whatsoever much less reasoned decision making for its departure from prior precedents, and the courts in this Circuit have never approved any agency s decision to completely ignore relevant precedent. Sierra Club v. Jackson, 833 F. Supp. 2d at 32 (quoting Jicarilla Apache Nation v. U.S. Dept. of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010). Nor does anything else in EPA s administrative record satisfy this standard. Having failed to make findings in the Indefinite Stay notice that the four preliminary 17

27 injunction factors are met, EPA lacked authority to stay the ELG Rule under 5 U.S.C III. EPA REGION XII COULD RELY ON THE BEST PROFESSIONAL JUDGMENT AS AN ALTERNATIVE GROUND FOR REQUIRING ZERO DISCHARGE OF COAL ASH TRANSPORT WASTES. Both national and state effluent standards are enforced through the NPDES permit program. 40 C.F.R (2)(c)(ii) (2017). Under the NPDES, it is unlawful for any company to discharge a pollutant without obtaining a permit and complying with its terms. EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 (1976). The NPDES permits thus transform generally applicable effluent limitations and other standards into obligations for an individual discharger. Id. Accordingly, there are two general approaches for developing technology-based effluent limits for industrial facilities: (1) using national effluent limitations guidelines (ELGs) and (2) using Best Professional Judgment (BPJ) on a case-by-case basis when ELGs are inapplicable. 40 C.F.R (c)(3)(2017). Technology-based effluent limits for municipal facilities (POTWs) originate from secondary treatment standards. Id. The intent of a technology-based effluent limitation is to require a minimum level of treatment for industrial sources based on currently available treatment technologies while allowing the discharger to use any available control technique to meet the limitations. See Id. All dischargers are required to obtain a permit, which is issued after public notice and an opportunity for public hearing. 33 U.S.C. 1342(a)(1) (2012). Permits are issued as long as a power plant meets all applicable effluent limitations. Id. When no national ELG standards are set, a permit writer is authorized to use, on a case-bycase basis, his best professional judgment to impose such conditions as the permit writer determines are necessary to carry out the provisions of [the CWA.] Id. Thus, compliance with a permit is generally deemed to constitute compliance with the CWA's requirements. See 33 U.S.C. 18

28 1342(k) (2012). BPJ authorizes the EPA Administrator to issue a permit containing such conditions as the Administrator determines are necessary to carry out the provisions of this Act prior to establishing ELGs for a point source. 33 U.S.C. 402(a)(1) (2012). In setting BPJ limitations, the NPDES regulations state that permits developed on a caseby-case basis under section 402(a)(1) of the CWA must consider (1) the appropriate technology for the category class of point sources of which the applicant is a member, based on all available information, and (2) any unique factors relating to the applicant. 40 C.F.R (d) (2017). These factors are the same factors required to be considered by EPA in the development of ELGs and, therefore, are often referred to as the section 304(b) factors. They include: the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, and among the other factors. Id. Since BPJ contains an element of discretionary authority, a permit writer should establish BPJ conditions in permits that are both technically sound and reasonable. See Id. Here, the MEGS coal ash pond contains toxic pollutants that were not regulated by the 1982 ELGs. As a result, reliance on BPJ is justified even if this Court finds that the 2015 ELGs were eliminated or vacated. First, the MEGS coal ash pond was created in 1978 by damming the free-flowing upper reach of Fossil Reach. R. at 7. At that time, EPA lacked any national ELG standards, so the use of a permit writer exercising his best professional judgment was appropriate to carry out the CWA provisions. Because EnerProg does not dispute that the MEGS coal ash pond contains toxic pollutants, such as mercury, arsenic, and selenium that are not regulated by the 1982 ELGs, these pollutants are appropriately subject to BPJ limits. Second, EPA s permit writer properly exercised his discretion in this case. The record 19

29 reveals that an expert was consulted on the MEGS permit and that various technologies were assessed and reviewed. R. at For example, the permit writer based his decision on the fact that MEGS is sufficiently profitable to adopt dry handling of these wastes with zero liquid discharges at no more than a twelve cents per month increase in the average consumer s electric bill. R. at 9. Further, the permit writer determined that the MEGS permit must contain limits for toxic pollutants actually present in the discharge based on the BAT, independent of the 2015 ELGs. R. at 9. Because dry handling of bottom ash and fly ash have been in use at existing plants in the industry for many years, the permit writer s best professional judgment in determining that zero discharge of ash handling wastes by November 1, 2018, for MEGS seemed reasonably sound and technically appropriate. Thus, both federal and state NPDES permit discharge limitation requirements are applicable to the MEGS permit program. IV. NPDES PERMITTING REQUIREMENTS DO APPLY TO ENERPROG S POLLUTANT DISCHARGES INTO THE MEGS ASH POND, BECAUSE EPA S JULY 21, 1980 SUSPENSION OF PROVISIONS OF 40 C.F.R DID NOT FOLLOW THE REQUIREMENTS OF 5 U.S.C. 553(b)-(d), AND THUS WAS ARBITRARY AND CAPRICIOUS UNDER 706(2)(A). NPDES permitting requirements do apply to EnerProg s pollutant discharges into the MEGS ash pond, because EPA s July 21, 1980, suspension of provisions of 40 C.F.R did not follow the requirements of 5 U.S.C. 553(b)-(d), and thus was not a valid suspension. Section 553 of the APA lays out the procedural requirements for all federal agency rulemaking. " [R]ule making means agency process for formulating, amending, or repealing a rule. 5 U.S.C. 551(5) (2012). This section requires notice of a proposed rule be published in the Federal Register, 5 U.S.C. 553(b) (2012), followed by an opportunity for public comment in the form of written data, views, or arguments. Id. 553(c). In adopting and publishing the final rule, 20

30 the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. Id. In following these steps, the agency must base the final rule on the whole record and must not ignore any relevant factors, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), nor rel[y] on factors which Congress had not intended it to consider. Motor Vehicle Mfr.'s Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see Mass. v. EPA, 549 U.S. 497 (2007) (using the Overton Park relevant factors test). Review of these steps will be applied equally to initial agency action or later revision of the prior action, though an agency must give a valid explanation for a change in policy. Fox Television Stations, Inc., 556 U.S Under APA section 701, federal agency actions are subject to judicial review except where there is a statutory prohibition on review or where "agency action is committed to agency discretion by law. 5 U.S.C. 701 (2012). The exception for action "committed to agency discretion" is a very narrow one. Richardson v. United States Customs Serv., 47 F.3d 415, 421 (Fed. Cir. 1995); see Citizens to Preserve Overton Park, 401 U.S Judicial "[r]eview of an agency's procedural compliance with statutory norms is an exacting one," NRDC v. SEC, 606 F.2d 1031, 1048 (D.C. Cir. 1979), which contrasts with the deferential standard applicable to substantive challenges to agency action. NRDC v. EPA, 683 F.2d at 760 (citing SEC, 606 F.2d at 1049). Additionally, sudden changes of agency course are danger signals which a reviewing court must be alert to. Joseph v. FCC, 404 F.2d 207, 212 (D.C. Cir. 1968). Upon review, if a court finds an agency s action did not follow the above outlined procedural requirements, then the action will be found to be arbitrary and capricious and remanded to the agency. See 5 U.S.C. 706(2)(A) (2012); Citizens to Preserve Overton Park, 401 U.S A. Rescission, and Suspension, of an Agency Rule is Subject to the Same Review as Rule Promulgation. The Supreme Court has held that rescission of an agency rule is subject to the same 21

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