Tenn. Clean Water Network v. Tenn. Valley Auth.
| Decision Date | 17 January 2019 |
| Docket Number | No. 17-6155,17-6155 |
| 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 |
The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.
Therefore, the petition is denied.
Judge Clay would grant rehearing for the reasons stated in his dissent.
In seeking to harmonize the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA), the majority opinion in this case takes up an issue of exceptional importance. Its holding that the CWA does not apply to discharges of pollutants from coal ash ponds that reach surface waters after traveling through groundwater (1) relies on a single preposition that is not found in the CWA provision at issue and (2) is at odds with every other circuit and our own precedent. I therefore respectfully dissent from the denial of en banc review.
The district court concluded its 123-page opinion by explaining that, with the benefit of hindsight and decades of data, "it is difficult to imagine why anyone would choose to build an unlined [coal] ash waste pond in karst terrain immediately adjacent to a river." (R. 258, PageID 10,542) TVA does not contest the district court’s factual finding that pollutants from these ash ponds reached a navigable river. Nor could it. TVA’s expert "conceded that there is coal ash in the Cumberland River in the area surrounding the Gallatin Plant, as shown by TVA’s own testing." (Id. , PageID 10,486) The danger of coal ash to riverine environments and to the communities that depend on that river is indisputable—and, indeed, the majority does not attempt to dispute it. See Tenn. Clean Water Network v. TVA , 905 F.3d 436, 447 (6th Cir. 2018).
We need not look far to find a vivid example of how that danger affects Tennesseans. Just last month, an East Tennessee jury returned a verdict against Defendant TVA in a suit brought by the workers who cleaned up a 2008 coal ash spill. See Adkisson v. Jacobs Eng’g Grp., Inc. , No. 3:13-CV-00505, D.E. 408 (E.D. Tenn.). Media coverage of the case stated that 30 of the workers are dead and more than 250 are sick or dying.1 And the problems did not end with the cleanup. Recent journalism reports that coal ash storage facilities established in the wake of that disaster are already leaking arsenic and radium into groundwater and that the EPA has found a spike in coal ash constituents in groundwater test wells.2
This environmental issue reaches beyond Tennessee’s problem with TVA’s coal ash ponds. Many other types of installations pollute navigable waters via discharges to groundwater. See, e.g. , Upstate Forever v. Kinder Morgan Energy Partners, LP , 887 F.3d 637, 643–44 (4th Cir. 2018) (). The majority opinion, in seeking to harmonize the CWA and RCRA, has deprived regulators and affected citizens of a critical tool—in some circumstances, the only tool—to combat those various types of seeping pollution.
That result is not mandated by statutory text. The only support the majority opinion finds in the text of the CWA is the word "into." Tenn. Clean Water Network , 905 F.3d at 444. I agree with the dissent that it is dubious that Congress hid such a sizable loophole in a preposition—especially in a preposition that is not even found in the portion of the statute at issue in this case. Id. at 450–51 (Clay, J., dissenting). And even if we assume that the meaning of the word "into" is the critical inquiry, the definitions cited by the majority require only entry, not "direct" entry. See Rapanos v. United States , 547 U.S. 715, 743, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality) (Scalia, J.) . Pollutants are discharged from coal ash ponds into navigable waters just as a rocket is launched from the ground into space or a path leads from a city into a forest—inevitably, but not immediately.
The majority opinion’s only other rationale is that "allowing the CWA to cover pollution of this sort would disrupt the existing regulatory framework" under RCRA. Tenn. Clean Water Network , 905 F.3d at 445. But we have answered that claim before and clarified how the CWA (which governs water pollution) and RCRA (which governs disposal of solid and hazardous waste) interact. When a polluting factory operator claimed that the hazardous waste dumped into a lagoon was exempt from RCRA because the lagoon was governed by the CWA, we explained that "only the actual discharges from a holding pond or similar feature into surface waters ... are governed by the Clean Water Act, not the contents of the pond or discharges into it." United States v. Dean , 969 F.2d 187, 194 (6th Cir. 1992). So too with coal ash ponds. "Actual discharges" from the ponds to surface waters are governed by the CWA, and everything else—from the strength of the embankment surrounding a pond to the frequency of its inspections and the design of its liner—is governed by RCRA. This reading acknowledges the realistic interaction between the two Acts, and their sensible enforcement relationship. It does not "effectively nullify" RCRA’s implementing regulations.3 Tenn. Clean Water Network , 905 F.3d at 446 (citation omitted).
The majority’s interpretation, on the other hand, could effectively nullify RCRA. The majority reasons that, if a coal ash pond received a CWA permit, it would be removed from RCRA’s coverage. Id. By this logic, if a landfill has a system for collecting rainwater and discharging it into a river, governed by the CWA pursuant to 40 C.F.R. Part 445, the rest of the landfill’s operations would be exempt from RCRA. Likewise, if TVA’s own power plants have CWA permits pursuant to 40 C.F.R. Part 423, the plants’ other operations would be exempt from RCRA—including, presumably, its rules about disposal of coal ash. But that is indisputably not the case.
In light of my disagreement with the two bases of the majority’s decision, I do not think splitting from every other circuit that has considered this issue is warranted. See Upstate Forever , 887 F.3d at 650 (); Haw. Wildlife Fund v. County of Maui , 886 F.3d 737, 746 (9th Cir. 2018) ( ; see also Waterkeeper All., Inc. v. EPA , 399 F.3d 486, 510–11 (2d Cir. 2005) (); Sierra Club v. Abston Constr. Co. , 620 F.2d 41, 45 (5th Cir. 1980) ().4
Though I appreciate the majority’s acknowledgement of the importance of identifying some path to a remedy, I do not think it is accurate to conclude that "other environmental laws have been enacted to remedy" pollution that seeps from coal ash ponds into surface waters. Tenn. Clean Water Network , 905 F.3d at 447. I doubt the feasibility of using a statute designed to govern solid waste to regulate pollution of rivers. I am even less confident that existing environmental law can fill the new loopholes created now that a polluter can escape liability under the CWA "by moving its drainage pipes a few feet from the river bank." Id. (Clay, J., dissenting). For these reasons and those articulated more fully in Judge Clay’s dissenting opinion, I respectfully dissent from the denial of rehearing en banc.
APPENDIX
CLAY, Circuit Judge, dissenting. Can a polluter escape liability under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 – 1387, by moving its drainage pipes a few feet from the riverbank? The Fourth and Ninth Circuits have said no. In two cases today,1 the majority says yes. Because the majority’s conclusion is contrary to the plain text and history of the CWA, and because I disagree with the majority’s analysis of the permit’s Sanitary Sewer Overflow provision, I respectfully dissent from the majority’s position as to these issues.
Plaintiffs have invoked the CWA’s citizen-suit provision, which provides that "any citizen may commence a civil action ... against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter[.]" 33 U.S.C. § 1365(a). "For purposes of this section, the term ‘effluent standard or limitation under this chapter’ means," among other possibilities, "an unlawful act under subsection (a) of section 1311 of this title." § 1365(f). In turn, § 1311(a) prohibits "the discharge of any pollutant by any person[.]"
The broad sweep of a defendant’s potential CWA liability is limited in two ways. First, Congress included a list of exceptions in § 1311(a) itself: the discharge of a pollutant is unlawful "[e]xcept in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title." Second, Congress gave the phrase "discharge of a pollutant" a very specific definition: it means "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A)....
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