Tenn. Clean Water Network v. Tenn. Valley Auth.

• Decision Date: 24 September 2018
• Docket Number: No. 17-6155,17-6155
• Citation: 905 F.3d 436
• Parties: TENNESSEE CLEAN WATER NETWORK ; Tennessee Scenic Rivers Association, Plaintiffs-Appellees, v. TENNESSEE VALLEY AUTHORITY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

905 F.3d 436

TENNESSEE CLEAN WATER NETWORK ; Tennessee Scenic Rivers Association, Plaintiffs-Appellees,

v.TENNESSEE VALLEY AUTHORITY, Defendant - Appellant.

No. 17-6155

United States Court of Appeals, Sixth Circuit.

Argued: August 2, 2018

Decided and Filed: September 24, 2018

ARGUED: David D. Ayliffe, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellant. Frank S. Holleman, III, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees. ON BRIEF: David D. Ayliffe, James S. Chase, F. Regina Koho, Lane E. McCarty, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellant. Frank S. Holleman, III, Nicholas S. Torrey, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, Anne E. Passino, SOUTHERN ENVIRONMENTAL LAW CENTER, Nashville, Tennessee, Michael S. Kelley, Briton S. Collins, KENNERLY, MONTGOMERY & FINLEY, P.C., Knoxville, Tennessee, Austin D. Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER, Asheville, North Carolina, for Appellees. Douglas H. Green, Margaret K. Fawal, VENABLE LLP, Washington, D.C., Eric M. Palmer, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, Carlos C. Smith, Larry L. Cash, Mark W. Smith, MILLER & MARTIN PLLC, Chattanooga, Tennessee, Robert F. Parsley, M. Heith Frost, MILLER & MARTIN PLLC, Chattanooga, Tennessee, Nash E. Long, Brent A. Rosser, HUNTON & WILLIAMS LLP, Charlotte, North Carolina, Elbert Lin, HUNTON & WILLIAMS LLP, Richmond, Virginia, F. William Brownell, HUNTON & WILLIAMS LLP, Washington, D.C., Roger P. Sugarman, Scott M. Doran, William J. Levendusky, KEGLER BROWN HILL + RITTER CO., LPA, Columbus, Ohio, Reed W. Super, SUPER LAW GROUP, LLC, New York, New York, Angela M. Garrone, SOUTHERN ALLIANCE FOR CLEAN ENERGY, Knoxville, Tennessee, Emily B. Vann, OFFICE OF THE ATTORNEY GENERAL OF TENNESSEE, Nashville, Tennessee, Leah J. Tulin, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amici Curiae.

Before: SUHRHEINRICH, CLAY, and GIBBONS, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court in which GIBBONS, J., joined. CLAY, J. (pp. 447–55), delivered a separate dissenting opinion.

SUHRHEINRICH, Circuit Judge.

I. INTRODUCTION

Defendant Tennessee Valley Authority ("TVA" or "Defendant") operates a coal-fired electricity-generating plant, the Gallatin Fossil Plant ("Gallatin plant"), on a part of the Cumberland River known as Old Hickory Lake, a popular recreation spot. The Gallatin plant generates wanted electricity (which it supplies to approximately 565,000 households in the greater Nashville area), as well as unwanted waste byproducts, in particular coal combustion residuals ("CCRs") or coal ash. The plant disposes of the coal ash by "sluicing" (mixing with lots of water) and allowing the coal ash solids to settle in a series of unlined man-made coal ash ponds adjacent to the river. The Gallatin plant has a permit to discharge some of this coal combustion wastewater, which contains heavy metals and other pollutants, into the river through a pipe, known as Outfall 001. Other wastewater is allegedly discharged through leaks from the ponds through the groundwater into the Cumberland River, a waterway protected by the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq . The CWA indisputably regulates the first type of discharge. The issue on appeal is whether the CWA also regulates the latter type of discharge.

After a bench trial, the district court found that TVA violated the CWA because its coal ash ponds at the Gallatin plant leaks pollutants through groundwater that is "hydrologically connected" to the Cumberland River without a permit. This theory of liability has been labeled the "hydrological connection theory" by the Federal Environmental Protection Agency ("EPA"). As explained in the companion decision also issued today, Kentucky Waterways All., v. Kentucky Utilities Co. , No. 18-5115, ––– F. 3d ––––, 2018 WL 4559315 (6th Cir. 2018) (" Kentucky Waterways "), we find no support for this theory in either the text or the history of the CWA and related environmental laws. We therefore hold that the district court erred in granting relief under the CWA.

II. BACKGROUND

A. Statutory Background

Some background on the CWA is helpful. As explained in Kentucky Waterways, Congress passed the CWA in 1972 with the stated purpose of "restor[ing] and maintain[ing] the ... Nation's waters." 33 U.S.C. § 1251(a). To that end, the CWA requires a permit to "discharge ... any pollutant." Id. §§ 1311(a), 1342(a). The discharge of a pollutant is defined as "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12)(A). Navigable waters are broadly defined as "the waters of the United States." Id. § 1362(7). And a point source is a "discernible, confined and discrete conveyance." Id. § 1362(14). These permits are issued pursuant to the CWA's National Pollutant Discharge Elimination System ("NPDES"). Id . § 1342. Therefore, in order to add a pollutant to the waters of the United States via a conveyance, an NPDES permit is required.

The CWA overhauled the 1948 Federal Water Pollution Control Act and the Water Quality Act of 1965 by shifting the focal point of liability from measuring excess pollution levels in the receiving water to capping effluent limitations from a discharging source. See S. Rep. No. 92-414 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3675 ("Under [the CWA] the basis of pollution prevention and elimination will be the application of effluent limitations. Water quality will be a measure of program effectiveness and performance, not a means of elimination and enforcement.... With effluent limits, the [EPA] ... need not search for a precise link between pollution and water quality.").

With the CWA, Congress also sought to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use ... of land and water resources." 33 U.S.C. § 1251(b). The CWA accomplishes this by allowing the states to administer the CWA's NPDES permitting program themselves, provided their regulations are at least as stringent as the federal limitations, id. § 1342(b)-(d), and most notably, by drawing a line between point-source pollution and nonpoint-source pollution, id. § 1362(12),(14). Point-source pollution is subject to the NPDES requirements, and thus, to federal regulation under the CWA. But all other forms of pollution are considered nonpoint-source pollution and are within the states' regulatory domain. See id. §§ 1314(f), 1362(12); see also Nat'l Wildlife Fed'n v. Consumers Power Co. , 862 F.2d 580, 588 (6th Cir. 1988). Similarly, the CWA is restricted to regulation of pollutants discharged into navigable waters, id. § 1362(12), leaving the states to regulate pollution of non-navigable waters.

The EPA has the power under the CWA to issue orders and to bring civil and criminal actions against those in violation of its provisions. Id. § 1319(a)-(c). The CWA also allows private citizens to file civil actions against violators, provided they give the EPA, the relevant state, and the alleged wrongdoer sixty-days' notice prior to filing the lawsuit. Id. § 1365(a)-(b); see Sierra Club v. Hamilton Cty. Bd. of Cty. Comm'rs , 504 F.3d 634, 637 (6th Cir. 2007) (noting private citizen suits "provide a second level of enforcement" and serve as a check on state and federal governments, who bear the primary enforcement responsibility for prosecuting CWA violations).

We have held that a CWA claim has five elements: "(1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source ." Consumers Power Co. , 862 F.2d 580 at 583 (quoting Nat'l Wildlife Fed'n v. Gorsuch , 693 F.2d 156, 165 (D.C. Cir. 1982) ).

B. Factual Background

As noted, the Gallatin plant is adjacent to the Cumberland River, a "water[ ] of the United States." 33 U.S.C. § 1362(7). TVA has two coal ash ponds or impoundments at the Gallatin plant: the Non-Registered Site ("NRS") and the Ash Pond Complex ("Complex"). The NRS is closed, and the Complex is in the process of being closed.

1. The NRS

From 1956 to 1970, the Gallatin plant sluiced CCRs to the NRS, an unlined 65-acre site along the western edge of the river. The NRS is situated atop alluvium (loose soil, silt, clay). By 1973, TVA had dewatered the NRS. TVA closed the NRS in 1998, pursuant to the State of Tennessee's solid waste program. For this reason the NRS does not have an NPDES permit. Instead, the Tennessee Department of Environment and Conservation ("TDEC") regulates the "closed dry ash disposal area" according to its solid waste landfill standards, which include ongoing groundwater monitoring. See Tenn. Code Ann. § 68-211 et seq . Approximately 2.3 million cubic yards of coal ash are stored at the NRS.

Based on expert testimony from both sides, the district court found that "it does appear more likely than not that some portions of [the NRS as well as the Complex] penetrate the water table." The court concluded that the NRS is contaminated; that it leaked historically; that there was "no evidence to suggest that the ‘closure’ of the site ... wholly stopped the leaking."

2. The Complex

After 1970, TVA began treating its CCR in a series of unlined ponds, collectively known as the Complex. The ponds, which cover roughly 476 acres, treat sluiced wastewater by allowing CCRs to settle before releasing wastewater to the Cumberland River through Outfall 001. Approximately 11.5 million cubic yards of coal ash are stored at the Complex today. The parties agree that the Complex sits atop karst terrain, a landscape characterized by underground sinkholes, fissures, and caves caused by water-dissolving limestone. See 40 C.F.R. § 257.53. Groundwater flows easily through the factures and other conduits created by the dissolved rock.

Historically, the Complex leaked significant amounts of pollutants into the river. Between 1970 and 1978, approximately 27 billion gallons of coal...