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

• Decision Date: 09 September 2016
• Docket Number: NO. 3:15-cv-00424,3:15-cv-00424
• Citation: 206 F.Supp.3d 1280
• Parties: TENNESSEE CLEAN WATER NETWORK and Tennessee Scenic Rivers Association, Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

206 F.Supp.3d 1280

TENNESSEE CLEAN WATER NETWORK and Tennessee Scenic Rivers Association, Plaintiffs,

v.TENNESSEE VALLEY AUTHORITY, Defendant.

NO. 3:15-cv-00424

United States District Court, M.D. Tennessee, Nashville Division.

Signed September 9, 2016

Anne E. Passino, Delta Anne Davis, Elizabeth A. Alexander, Nashville, TN, Gary A. Davis, Davis & Whitlock, P.C., Asheville, NC, Shelby Renee Burks Ward, Tennessee Clean Water Network, Knoxville, TN, Frank S. Holleman, III, Chapel Hill, NC, for Plaintiffs.

David D. Ayliffe, Maria V. Gillen, Edwin W. Small, James S. Chase, Tennessee Valley Authority, Knoxville, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., UNITED STATES DISTRICT JUDGE

The Tennessee Clean Water Network and Tennessee Scenic Rivers Association ("Plaintiffs") have filed a Complaint against the Tennessee Valley Authority ("TVA") alleging numerous violations of the Clean Water Act ("CWA") related to TVA's operation of a coal-fired power plant about five miles south of the city of Gallatin, Tennessee ("Gallatin Plant"). (Doc. No. 1.) TVA has filed a Motion to Dismiss for Failure to State a Claim (Doc. No. 12), a Motion to Dismiss Plaintiffs' Claim for Civil Penalties and Plaintiffs' Jury Demand (Doc. No. 28), a Motion for Judgment on the Pleadings as to All Plaintiffs' Claims Regarding Seeps (Doc No. 51), a Motion for Summary Judgment on Plaintiffs' Claim B (Doc. No. 57), and a Motion for Judgment on the Pleadings as to Plaintiffs' Claim E (Doc. No. 102). Plaintiffs have filed a Motion for Partial Summary Judgment. (Doc. No. 106.) TVA has also filed a Request for Judicial Notice regarding two exhibits. (Doc. No. 136.)

I. BACKGROUND

Plaintiffs are two Tennessee conservation organizations claiming individual members who variously use, paddle, fish in, enjoy, and otherwise live, work, and recreate on the portion of the Cumberland River in the vicinity of and downstream from the Gallatin Plant. (Doc. No. 1 at ¶¶ 22, 29, 31.) TVA is a corporate agency and instrumentality of the United States created by the Tennessee Valley Authority Act of 1933, see 16 U.S.C. § 831 –831ee, that operates electricity-generating facilities including the Gallatin Plant. (Id. at ¶ 2.)

A. The Gallatin Plant & Ash Ponds

The Gallatin Plant is a four-unit, coal-fired power plant on Odom's Bend Peninsula, adjacent to the portion of the Cumberland River known as Old Hickory Lake. (Doc. No. 87 at ¶ 1.) Old Hickory Lake is a reservoir created by the construction of the Old Hickory Lock and Dam downstream from the location of the Gallatin Plant. (Doc. No. 125 at ¶¶ 2–3.) Both the Lock and Dam and the Plant were constructed during the 1950s, through cooperation between TVA and the Army Corps of Engineers. (Doc. No. 87 at ¶¶ 11–14.) The Gallatin Plant now burns approximately four million tons of coal each year, generating both wanted electricity and unwanted waste byproducts, in particular coal ash. The Plant can create as much as 235,000 tons of coal ash annually. (Doc. No. 1 at ¶ 49; Doc. No. 14 at ¶ 49.) The Plant removes its coal ash by mixing the ash with water and sluicing it to a series of unlined coal ash ponds that are separated from the Cumberland River by "earthen dikes." (Doc. No. 14 at ¶¶ 49–50.)

Until around 1970, the Plant used a series of ash ponds now known as Non-Registered Site #83-1324 ("Non-Registered Site"). Around 1970, when the Non-Registered Site reached capacity, the Plant stopped using the site for coal ash disposal, but the pond area—which, TVA admitted in its Answer, measures approximately 73 acres—still contains an unknown amount of coal ash. (Id. at ¶¶ 79–81.) In or around 1997, the Tennessee Department of Environment & Conservation ("TDEC") asked TVA to formulate a closure plan for the Non-Registered Site, which it did. As part of the closure plan, TVA began monitoring the area's groundwater for coal ash contamination in 2000. (Id. at ¶¶ 82–83.)

TVA now sluices its ash-water mixture to a different series of ponds ("Ash Pond Complex"). (Doc. No. 125 at ¶ 35.) Plaintiffs have identified the Ash Pond Complex as consisting of five ponds: Ash Pond A; Ash Pond E; and Stilling Ponds B, C, and D. (Doc. No. 134 at SOF 36.) Coal ash waste begins its passage through the complex in either Ash Pond A or E, where some ash is allowed to settle before the water is sent to the stilling ponds. In the stilling ponds, more ash is allowed to settle, before the water is finally discharged into the Cumberland River. (Doc. No. 1 at ¶¶ 55–56; Doc. No. 14 at ¶¶ 55–56.) In its Answer, TVA admits that, while the amount of coal ash produced by the Gallatin Plant varies from year to year, it annually sluices about 230,000 tons of ash into Ash Pond A. (Doc. No. 1 at ¶ 101; Doc. No. 14 at ¶ 101.) Wastewater then passes from Ash Pond A to Stilling Pond B, from there to Stilling Pond C, and from there to Stilling Pond D. (Doc. No. 125 at ¶¶ 39–41). Stilling Pond D discharges effluent into the Cumberland River at a site known as Outfall 001. (Doc. No. 125 at ¶ 41). Although TVA no longer sluices ash into Ash Pond E, that pond continues to contain what Plaintiffs allege to be roughly five million cubic yards of coal ash. (Doc. No. 1 at ¶ 103; Doc. No. 14 at ¶ 103; Doc. No. 125 at ¶ 38.) Wastewater passes from Ash Pond E to Stilling Pond C, and from there to Stilling Pond D, where it joins the water being discharged into the river at Outfall 001. (Doc. No. 125 at ¶¶ 39–41).

Somewhat complicating matters, Plaintiffs dispute that the Ash Pond Complex is merely a manmade wastewater treatment system that discharges into the Cumberland River. Rather, citing United States Geological Survey maps that pre-date the creation of the Ash Pond Complex, Plaintiffs allege that a portion of the area on which the ponds were built had been covered by a stream known as "Sinking Creek" that connected to the river. (Doc. No. 1 at ¶ 107.) Sinking Creek, Plaintiffs argue, was and continues to be a water of the United States.¹ Under such a reading, at least portions of the Ash Pond Complex, in particular Ash Ponds A and E, would themselves be waters of the United States, because they are inseparable from Sinking Creek itself. (Id. at 164–166.)

B. The Gallatin Plant's NPDES Permit

The CWA "anticipates a partnership between the States and the Federal Government, animated by a shared objective: ‘to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.’ " Arkansas v. Oklahoma , 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) (quoting 33 U.S.C. § 1251(a) ). The bedrock of the CWA is "a default regime of strict liability," whereby the discharge of any covered pollutant into the Nation's waters amounts to a violation of the statute unless subject to a specific exception. Sierra Club v. ICG Hazard, LLC , 781 F.3d 281, 284 (6th Cir. 2015) (quoting Piney Run Preservation Ass'n v. Cty. Comm'rs of Carroll Cty. , 268 F.3d 255, 268–69 (4th Cir. 2001) ). The chief means for qualifying for an exception to the CWA's strict liability regime is compliance with a permit issued under the National Pollutant Discharge Elimination System ("NPDES"). Id. "Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians , 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). Discharge of pollutants into the waters of the United States without an NPDES permit, or in violation of the terms of an NPDES permit, is typically a violation of the CWA. 33 U.S.C. §§ 1311(a), 1342(a), 1365(f)(6).

"The Environmental Protection Agency ( ["EPA"] ) initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials." Nat'l Ass'n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (citing 33 U.S.C. §§ 1251(b), 1342 ). In December of 1977, the EPA authorized the State of Tennessee to issue some types of NPDES permits, which the State grants and enforces through TDEC. See 56 Fed. Reg. 21, 376 (1991). In 1986, the EPA expanded that authorization to include the authority to issue and oversee permits for federal facilities such as the Gallatin Plant. 51 Fed. Reg. 32, 834 (1986). The parties agree that the discharge of pollutants from the Gallatin Plant to the Cumberland River is authorized and governed by TDEC-issued NPDES Permit No. TN0005428 ("NPDES Permit"), which TDEC most recently reissued in 2012. (Doc. No. 1 at ¶ 5; Doc. No. 1-2; Doc. No. 15 at ¶ 5.) Plaintiffs allege that the NPDES Permit authorizes the discharge of wastewater pollutants from the ash ponds only through a single point source: Outfall 001. A discharge to the waters of the United States through any other point source, they argue, would be a violation of the CWA. (Doc. No. 1 at ¶¶ 46, 57.)

C. Alleged Unauthorized Discharges

The Gallatin Plant is located in an area with what is known as "karst" topography. Karst topography is "formed over limestone or dolomite, and characterized by sinkholes, caves, and underground drainage." (Doc. No. 1 at ¶ 68; Doc. No. 14 at ¶ 68.) Plaintiffs allege that TVA has long known that the ash ponds' construction and the area's topography would be expected to, and in fact have, resulted in contamination of the Cumberland River both through direct leaks from the ponds to the river as well as through leaks into groundwater that is hydrologically connected to the river. (Doc. No. 1 at ¶¶ 60–65.) In 1977, for example, TVA prepared a report titled "Magnitude of Ash Disposal Pond Leakage Problem: Gallatin Steam Plant," that Plaintiffs contend identified sinkhole-related leakages so great that the leakage rate was equal to the rate of the inflow of wastewater itself. (Id. at ¶¶ 69–72.) Plaintiffs allege that sinkholes caused illegal discharges in at least 2005 and 2010 as well. (Id. at...