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

905 F.3d 436
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 24, 2018
Docket17-6155
StatusPublished
Cited by7 cases

This text of 905 F.3d 436 (Tenn. Clean Water Network v. Tenn. Valley Auth.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tenn. Clean Water Network v. Tenn. Valley Auth., 905 F.3d 436 (6th Cir. 2018).

Opinions

SUHRHEINRICH, Circuit Judge.

*438I. 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.

*4393668, 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.

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905 F.3d 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tenn-clean-water-network-v-tenn-valley-auth-ca6-2018.