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waters below a valley fill permitted by the Corps under CWA § 404." Id., citing letter from <br />Benjamin H. Grumbles, Assistant Administrator for the EPA, to John Paul Woodley, Assistant <br />Secretary of the Army (dated March 1, 2006), attached hereto as Attachment No. 5. Finally, the <br />Court noted that under the federal Surface Mining Control and Reclamation Act ( "SMCRA ") <br />"sediment ponds represent `best technology currently available' for the treatment of sedimentary <br />runoff from surface mining valley fills." 556 F.2d at 216, citing 30 C.F.R. § 816.46 (2008). The <br />Circuit Court concluded that in light of the deference given to the Corps in interpreting its own <br />regulations, its interpretation of the waste treatment exemption was not arbitrary and capricious. <br />Id. <br />The court in Virginia State Water Control Board ( "SWCB ") v. Blue Ridge Environmental <br />Defense League, 56 Va. App. 469, 694 S.E.2d 290 (Va. Ct. App. 2010), applied the waste <br />treatment system exemption in holding that a nuclear power station's discharges into a cooling <br />ponds did not require an NPDES permit. Reversing the trial court, the court of appeals held that <br />the SWCB had not acted arbitrarily or capriciously in determining that the cooling ponds fell <br />within the waste treatment exception. 694 S.E.2d at 305. The court particularly noted that the <br />SWCB was entitled to rely upon its historical practices with respect to cooling ponds, as well as a <br />letter from EPA "not objecting" to SWCB's determination of the regulatory status of the cooling <br />ponds in light of the ambiguity of the scope of the exemption. 694 S.E.2d at 307. <br />In sum, there is strong legal precedent that the downgradient wetlands serve as a part of a <br />waste treatment system. By suspending language that limited the exclusion to manmade bodies of <br />water, EPA, in 1980, left the scope of the exemption open to broader interpretation, as a number <br />of courts have so determined. Now, the exemption also applies to naturally- occurring treatment <br />systems, such as wetlands, rather than only to man -made treatment systems such as disposal ponds <br />(OVEC- stream channels were naturally occurring). This conclusion is supported by the fact that <br />the suspended language also explicitly excluded "disposal area in wetlands." During the <br />pendency of this suspension, it follows that all wetlands areas should be considered eligible for the <br />exclusion, particularly where, as here, the connection of the wetlands provide measurable water <br />quality treatment. <br />III. THE MODIFIED POINT OF COMPLIANCE WOULD STILL BE WITHIN THE <br />MINE PERMIT AREA. <br />Peabody seeks to have the Mine's discharge compliance point moved below the wetlands, <br />because they are part of the waste treatment system and within the mine permit boundary. By <br />offering this compliance point downgradient of the wetlands, Peabody has provided that water <br />quality compliance will occur within the mine permit boundary. Peabody's request to have the <br />Mine's discharge compliance point moved below the wetlands is consistent with SMCRA, the <br />Colorado Surface Coal Mining Reclamation Act and the terms of Peabody's Sage Creek Mine <br />Permit. <br />Under SMCRA, each mine permit application process focuses on the environmental <br />impact of the proposed mining activities outside the mine permit area. Specifically, the <br />application must include: "a determination of the probable hydrologic consequences of the mining <br />