SECTION 404 PERMIT: Does the ash pond closure

and capping require a permit for the discharge of fill material pursuant to section 404?

Before the EAB, FCW claimed that even if the section 122.2 exclusion from the definition of “waters of the United States” applies for the purpose of a section 402 permit for the discharge of pollutants, once the coal ash pond is closed, it no longer qualifies as a waste treatment system. Therefore, both the abandonment of the remaining coal ash and the placement of an impermeable cap constitute the discharge of fill material requiring a permit under CWA section 404. The EAB held that the exclusion does not contain any recapture provision that would convert the ash pond back into waters of the United States upon its retirement. Since the discharges to the ash pond do not require a section 402 permit, and since the jurisdictional definition of the waters of the United States is the same for section 402 and 404 permitting, the EAB reasoned, no section 404 permit is required for the ash pond closure and capping activities.

On appeal, FCW will argue, as above, that the 1980 suspension was not valid, therefore a section 404 permit is required. EnerProg and EPA have the stronger argument here. These parties will argue that the correct definition (for the Army Corps) clearly states that the coal ash pond is not a water of the United States, and the definition does not include a recapture provision.

FCW might first argue, relying on their arguments detailed in the section above, that the suspension of the exception to the exclusion of 40 C.F.R. section 122.2 was never valid. Therefore, the ash pond is a water of the United States, subject to the requirement for a 404 permit. Section 404 of the Clean Water Act describes the permitting scheme for “the discharge of dredged or fill material into the navigable waters at specific disposal sites” administered by the Army Corps of Engineers. 33 U.S.C. § 1344. FCW argues, as it did before the EAB, that the closure and capping of the coal ash pond requires a section 404 permit, as these actions constitute the discharge of fill material. The regulatory definition of “fill” as: “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(e)(1) (2017). The capping of the ash pond will both replace the coal ash pond, which was impounded from Fossil Creek, with dry land, and will change the bottom elevation. Therefore, the closure of the coal ash pond requires a section 404 permit. 33 U.S.C. §§ 1311, 1344.

EnerProg and EPA will respond that regardless of whether the suspension in 40 C.F.R. section 122.2 is valid, the relevant definition for the purposes of section 404 permit requirements is the Army Corps definition found at 33 C.F.R. section 328.3, contrary to the holding of the EAB. 40 C.F.R. section 122.2 only applies to the 402 permitting program. Here, the history is much simpler. In this definition, “waters of the United States” do not include “[w]aste treatment systems, including ponds or lagoons designed to meet the requirements of the Clean Water Act.” 33 C.F.R. § 328.3(b)(1). There is no exclusion or exception listed. By the plain language of the regulation, the ash pond is not a “water of the United States,” and not subject to the section 404 permit requirement.

The EAB held that 40 C.F.R. section 122.2 exception does not include a recapture provision. EnerProg and EPA will note that the same can be said for the Army Corps definition (33 C.F.R. § 328.3). The language of both 40 C.F.R. section 122.2 and 33 C.F.R. section 328.3(b)(1) do not indicate that the exclusions are temporary, whilst the waste treatment purpose is in effect. The Supreme Court has stated that courts should “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 (1997). See also Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015, 1020 (9th Cir. 1993). The Proposed Rule explicitly stated, in reference to the exclusion of waste treatment systems, among other exclusions: “There is no recapture provision for these excluded waters in the proposal.” Definition of “Waters of the United States” Under the Clean Water Act; Proposed Rule. 79 Fed. Reg. 22187, 22189 (Apr. 21, 2014). This holds true for the final rule.

A comment on the proposed rule urged the agencies to include a recapture provision for the excluded waters, indicating that “the permanency of these exclusions [was unsupported] with science.” U.S. EPA, Clean Water Rule Comment Compendium, Topic 7:

Features and Waters Not Jurisdictional 47 (June 2015).16 The EPA

responded: “The agencies believe the exclusions contained in the final rule provide a balance between protection and clarity that is reasonable and consistent with the statute’s goals and objectives.” Id. at 23. Furthermore, Congress chose to include a recapture provision for a separate category of waters, therefore its absence for the category at issue is more significant. See 33 U.S.C. § 1344(f)(2).

FCW might make a policy argument to support their contention that the ash pond should revert into a water of the United States upon termination of its use for waste treatment. The party may argue that the definitional exclusion clearly states the purpose of these ponds as serving as waste treatment systems to meet the requirements of the Clean Water Act.

This is not intended to be an exhaustive analysis of the problem, merely an indicative list of issues to be discussed in teams’ written submissions and oral arguments. One should appreciate reasoned and reasonable creativity and ideas beyond those in this limited analysis.

16. Available at https://www.epa.gov/sites/production/files/2015- 06/documents/cwr_response_to_comments_7_njd.pdf.

SAMPLE QUESTIONS FOR JUDGES