Tennessee Clean Water Network et al v. Tennessee Valley Authority
Filing
139
MEMORANDUM signed by District Judge Waverly D. Crenshaw, Jr on 9/9/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TENNESSEE CLEAN WATER
NETWORK and TENNESSEE SCENIC
RIVERS ASSOCIATION,
Plaintiffs,
v.
TENNESSEE VALLEY AUTHORITY,
Defendant.
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NO. 3:15-cv-00424
JUDGE CRENSHAW
MEMORANDUM OPINION
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
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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 electricitygenerating 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
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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
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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 (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
(2004). Discharge of pollutants into the waters of the United States without an NPDES permit, or
1
Congress has defined the jurisdiction of the CWA as reaching all “waters of the United States,
including the territorial seas.” 33 U.S.C.A. § 1362. Federal rules have defined “waters of the
United States” to “encompass not only traditional navigable waters of the kind susceptible to use
in interstate commerce, but also tributaries of traditional navigable waters and wetlands adjacent
to covered waters.” United States v. Cundiff, 555 F.3d 200, 206 (6th Cir. 2009)
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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 (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
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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 ¶ 73.)
According to Plaintiffs, TVA’s monitoring wells have shown that groundwater in and
around the Ash Pond Complex is contaminated by pollutants including aluminum, cobalt,
manganese, and sulfate, in concentrations above relevant state and federal standards. (Id. at ¶ 116.)
In addition to the groundwater contamination, Plaintiffs contend that TVA has identified and
actively monitored numerous “seeps” through which wastewater passed directly from the ponds
into the Cumberland River. (Id. at ¶ 117.) “Seep,” as Plaintiff uses the term, refers to “slow porespace seepage of contaminants,” as opposed to “conduit flow through fissures and sinkholes that
provides rapid connectivity with little to no pollutant attenuation.”
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(Doc. No. 1 at ¶ 152.)
Plaintiffs claim to have documented four additional seeps that TVA had not previously identified,
which Plaintiffs have dubbed Seeps A, B, C, and D. (Id. at ¶ 118.) Plaintiffs’ allegations tie the
seeps directly to TVA’s failure to adequately inspect, monitor, and maintain the ponds, and suggest
that seeps represent not only unlawful discharges of pollutants but also potential signs that the
structural integrity of the ponds might become compromised. (Id. at ¶ 119–24.)
2
TVA has similarly defined “seeps” as follows: “leachate from landfills or surface impoundments
containing combustion residuals” and “composed of liquid . . . that has percolated through waste
or other materials emplaced in a landfill, or that passes through the surface impoundment’s
containment structure (e.g., bottom, dikes, berms).” (Doc. No. 52 at 2 n.1 (quoting 42 C.F.R. §
423.11(r) (emphasis added)).) For the purposes of evaluating the pleadings, what is important is
that “seeps” is not a catchall term encompassing all leaks, and the Complaint alleges both seeps
and leaks that could not be characterized merely as seeps.
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The alleged contamination that Plaintiffs have identified is not limited to the still active
Ash Pond Complex. Plaintiffs allege that, by at least 2002, TVA’s groundwater monitoring around
the no longer active Non-Registered Site revealed beryllium, cadmium, and cobalt in excess of the
EPA’s maximum contaminant levels (“MCLs”) for groundwater protection, and that a 2012 TVA
study found that groundwater discharging into the Cumberland River from beneath the NonRegistered Site contained beryllium, cadmium, nickel, and zinc at levels that may pose a risk to
aquatic life. (Id. at ¶¶ 84, 90.) Plaintiffs further claim that independent testing at locations on the
Cumberland River shore adjacent to the Non-Registered Site in February of 2015 found levels of
arsenic, copper, nickel, and zinc in excess of EPA Region 4 (Southeast) screening values. (Id. at ¶
93.) The Non-Registered Site’s alleged discharges into the groundwater render it, in Plaintiffs’
words, “essentially a closed, but leaking[,] wastewater facility.” (Id. at ¶ 95.)
D. Plaintiffs’ Notice to Regulators
“Although the primary responsibility for enforcement [of the CWA] rests with the state
and federal governments, private citizens provide a second level of enforcement and can serve as
a check to ensure the state and federal governments are diligent in prosecuting Clean Water Act
violations.” Sierra Club v. Hamilton Cty. Bd. Of Cty. Comm’rs, 504 F.3d 634, 637 (6th Cir. 2007).
In furtherance of that role, a citizen may file a suit to enforce the CWA against an alleged polluter
if certain procedural requirements are met. 33 U.S.C. § 1365. Before filing suit alleging a CWA
violation, the citizen must provide sixty days’ notice to the alleged violator, the EPA, and the State
in which the alleged violation occurred. 33 U.S.C. § 1365(b)(1)(A). “The 60-day notice provides
federal and state governments with the time to initiate their own enforcement actions.” Hamilton
Cty. Bd. Of Cty. Comm’rs, 504 F.3d at 637. If the United States or relevant state government
does commence proceedings, the proposed citizen suit may be blocked by what is known as the
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“diligent prosecution” bar of 33 U.S.C. § 1365(b)(1)(B). The diligent prosecution bar provides
that a citizen may not file suit to enforce a standard, order, or limitation that is already subject to
an enforcement action that is being diligently prosecuted, in court, by the EPA or a state. 33 U.S.C.
§ 1365(b)(1)(B). If the government-initiated suit is in federal court, however, the citizen may still
participate by intervening as a matter of right. Id. Whether intervention is possible in a state court
action will, of course, depend on state procedural law.
On November 10, 2014, counsel for Plaintiffs sent a Notice of Violation letter to TVA,
TDEC, and the EPA. (Doc. No. 1-3.) The letter informed the recipients that the Plaintiffs had
“identified serious and ongoing unpermitted violations of the CWA at the Gallatin Plant,” and that
the Plaintiffs intended to sue TVA if it did not bindingly agree to appropriate remedial steps within
sixty days of its receipt of the letter. (Id. at 2.) The letter alleged that both the Ash Pond Complex
and Non-Registered Site had resulted in leakage of wastewater and pollutants into the surrounding
groundwater and the Cumberland River through a number of leaks in the ponds, including ten
TVA-identified seeps. (Id. at 6.) Plaintiffs cited both independent testing and TVA’s own testing
showing that groundwater in the area contained a number of pollutants in amounts exceeding
relevant EPA limits. (Id. at 7–16.)
E. State Enforcement Action
On January 7, 2015, the State of Tennessee filed an original enforcement action against
TVA in Davidson County Chancery Court under the Tennessee Solid Waste Disposal Act
(“SWDA”), Tenn. Code Ann. §§ 68-211-101 to -124, the Tennessee Water Quality Control Act of
1977 (“TWQCA”), Tenn. Code Ann. §§ 69-3-101 to -137, and regulations promulgated thereunder
(“State Enforcement Action”). (Doc. No. 13-5.) The complaint in the State Enforcement Action
expressly identifies itself as having been filed “in response to” the Plaintiffs’ notice letter. (Id. at
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2.) The State’s complaint alleges that TVA’s groundwater monitoring around the Non-Registered
Site suggest that “solid waste has been repeatedly discharged from the [Non-Registered Site] into
the groundwater in and around” the Gallatin Plant, giving rise to causes of action under both the
SWDA and TWQCA. (Id. at ¶¶ 40, 43, 48.) With regard to the Ash Pond Complex, the complaint
claims that ten seeps identified by the TVA “each constitut[es] a potential unpermitted discharge
from the impoundment ponds,” in violation of Parts II.A.4.a and II.C.1 of its NPDES permit and
the TWQCA. (Id. at ¶¶ 37, 51–53.) The Plaintiffs filed a Motion to Intervene in the State
Enforcement Action on February 5, 2015, and the State of Tennessee and TVA stipulated to their
intervention pursuant to Tenn. R. Civ. P. 24.01(3). (Doc No. 42-2 at ¶ 10.)
On January 21, 2016, the Davidson County Chancery Court entered an Agreed Temporary
Injunction between the State of Tennessee and TVA, requiring TVA to “develop an Environmental
Investigation Plan (EIP) for the [Gallatin Plant] and submit it to TDEC within 60 days of the entry
of this Order.” (Doc. No. 42-2 at 4.) TVA was directed to include in the EIP “a schedule of the
work to be performed to fully characterize the hydrology and geology of the [Gallatin Plant] and
identify the extent of soil, surface water, and groundwater contamination by CCR [Coal
Combustion Residual] material.” (Id. at 4.) The court also wrote that “[i]n signing this Agreed
Temporary Injunction, the Court does not intend for this agreed order to have an effect on the
progression of the pending federal lawsuit” in this Court. (Id. at 7.) Shortly after entering the
Agreed Temporary Injunction, the court also directed the parties to provide periodic status updates
every seventy-five days. (Doc. No. 77-1 at 2.) The status reports in that matter show that TVA
circulated its first proposed EIP in March of 2016, and the parties, including Plaintiffs in their
capacity as plaintiff-intervenors, have been meeting and communicating in efforts to agree upon
an appropriate EIP. (Doc. No. 77-2; Doc No. 109-2.)
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F. Federal Complaint
Plaintiffs filed their Complaint in this case on April 14, 2015. (Doc. No. 1.) In the
Complaint, Plaintiffs allege that the State Enforcement Action omitted a number of alleged CWA
violations covered by their 60-day notice letter:
The State Complaint did not include multiple ongoing violations of the Clean Water
Act, including: (1) multiple permit violations alleged by the Conservation Groups
in the 60-day notice; (2) that TVA is unlawfully discharging pollutants into the
surface water of the Cumberland River, as opposed to the groundwater beneath the
Gallatin Plant coal ash facility only; and (3) that TVA unlawfully discharged, and
continues to unlawfully discharge, coal ash into Sinking Creek, a water of the
United States.
(Doc. No. 1 at ¶ 20.) TVA has conceded that the third of these allegations—that TVA unlawfully
discharged pollutants into Sinking Creek—was not covered by its State complaint, but disputes
the contention that it failed to include any other relevant allegations. (Doc. No. 14 at ¶ 20.)
The federal Complaint pleads five claims, the last of which consists of five separate subclaims. Claim A asserts that TVA unlawfully discharged pollutants into the waters of the United
States through hydrologically connected groundwater discharges. (Doc. No. 1 at ¶¶ 151–161.)
Claim B is premised on Plaintiffs’ contention that TVA improperly used Sinking Creek, a water
of the United States, as a wastewater treatment facility. (Id. at ¶¶ 162–171.) Claim C alleges
CWA violations based on “contamination of the Cumberland River from the [Non-Registered
Site].” (Id. at ¶ 173.) Claim D similarly alleges violations based on “contamination of the
Cumberland River from the Ash Pond Complex.” (Id. at ¶ 178.) Finally, Claims E.a through E.e
are based on violations of various provisions of the NPDES permit: Claim E.a is premised on
subsection I.A.b; Claim E.b is premised on subsection I.A.c; Claim E.c is premised on subsection
II.A.4.a; Claim E.d is premised on subsection II.C.2; and Claim E.e is premised on subsection
II.C.3. (Id. at ¶¶ 181–208.)
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The parties have continued to litigate this case and the State Enforcement Action, and have
filed the various aforementioned motions in this Court. The Court will deal with the motions, as
necessary, in turn.
II. MOTIONS TO DISMISS & FOR JUDGMENT ON THE PLEADINGS
TVA has filed four different motions raising various arguments that all or part of the
Plaintiffs’ claims should be dismissed pursuant to Rule 12(b)(6) or 12(c) of the Federal Rules of
Civil Procedure. (Doc. No. 12; Doc No. 28; Doc. No. 51; Doc. No. 102.) Because the arguments
of these motions frequently overlap, the Court will consider them together.
A. Standard of Review
For purposes of a motion to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), the Court must take all the factual allegations in the complaint as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible
on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief. Id. at 679. A legal conclusion couched as a factual allegation need not be accepted as true
on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient. Fritz v.
Charter Twp. Of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). “A court that is ruling on a Rule
12(b)(6) motion may consider materials in addition to the complaint if such materials are public
records or are otherwise appropriate for the taking of judicial notice.” New England Health Care
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Emps. Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003) (citing Jackson v.
City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)).
“The standard of review for entry of judgment on the pleadings under Rule 12(c) is
indistinguishable from the standard of review for dismissals based on failure to state a claim under
Rule 12(b)(6).” Jackson v. Heh, 215 F.3d 1326 (table), 2000 WL 761807, at *3 (6th Cir. June 2,
2000). Whether a motion proceeds under Rule 12(c) or 12(b)(6) is merely a function of its timing
relative to the defendant’s filing of its answer. See Satkowiak v. Bay Cty. Sheriff’s Dep’t, 47 F.
App’x 376, 377 n.1 (6th Cir. 2002).
B. Diligent Prosecution Bar
TVA first asks the Court to dismiss this action altogether under the CWA’s diligent
prosecution bar. (Doc. No. 12.) Any citizen with constitutional standing to do so may file an
action “against any person . . . who is alleged to be in violation of . . . an effluent standard or
limitation” of the CWA. 33 U.S.C. § 1365(a)(1). Under the diligent prosecution bar, however, a
citizen cannot file an enforcement suit “if the Administrator or State has commenced and is
diligently prosecuting a civil or criminal action in a court of the United States, or a State to require
compliance with the standard, limitation, or order” on which the violation is premised. 33 U.S.C.
§ 1365(b)(1)(B). TVA argues that the Court must dismiss the federal Complaint because the State
Enforcement Action represents the State of Tennessee’s diligent enforcement of the same standard
or limitation as that on which Plaintiffs rely. Plaintiffs argue that the diligent prosecution bar does
not apply to this case because: (1) Tennessee’s statutes are not comparable to the CWA; (2)
Plaintiffs’ claims are tailored to target alleged violations that were omitted from the State
Enforcement Action; (3) the State’s actions do not amount to diligent prosecution; and (4) the
Tennessee statutory regime itself permits parallel prosecution.
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1. Comparability
Plaintiffs argue first that the diligent prosecution bar does not apply in this case because
the TWQCA is insufficiently comparable to the relevant provisions of the CWA. In so arguing,
Plaintiffs rely in significant part on the Sixth Circuit’s en banc opinion in Jones v. City of
Lakeland, Tennessee, 224 F.3d 518, 521 (6th Cir. 2000). In Jones, riparian landowners sued the
City of Lakeland alleging violations of its NPDES permit, and the city argued that the action was
barred because the matter was already the subject of an administrative proceeding under the
TWQCA. The court concluded that the diligent prosecution bar of 33 U.S.C. § 1365(b)(1)(B) did
not apply because the state proceeding was administrative only and no lawsuit had been filed. Id.
at 522. The court instead considered whether the case was foreclosed by the similar bar—specific
only to situations where the pending action is one for administrative penalties—to be found in 33
U.S.C. § 1319(g)(6)(A). That provision provides that “any violation . . . with respect to which a
State has commenced and is diligently prosecuting an action under a State law comparable to this
subsection . . . shall not be the subject of a civil penalty action under . . . section 1365 of this title.”3
The en banc court concluded that the bar did not apply because the TWQCA’s administrative
enforcement scheme did not afford sufficient opportunities for citizen participation and therefore
was not comparable to the CWA. Id. at 524–25.
As TVA correctly points out, however, 33 U.S.C. § 1365(b)(1)(B), unlike 33 U.S.C. §
1319(g)(6)(A), does not include any language requiring that the relevant state law be “comparable”
to the CWA. Jones is clear that the two bars, though similar, are separate limitations with
boundaries that will not necessarily be identical. Moreover, 33 U.S.C. § 1365(b)(1)(B) appears to
3
TVA has conceded the inapplicability of the 33 U.S.C. § 1319(g)(6)(A) bar to this case. (Doc.
No. 24 at 4.)
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expressly acknowledge that citizens may not be able to intervene as a matter of right in a state suit,
providing that “in any such action in a court of the United States any citizen may intervene as a
matter of right.” (Emphasis added.) Congress could have limited 33 U.S.C. § 1365(b)(1)(B) to
cases where enforcement was taking place in a federal court, or to cases where the citizen was
permitted to intervene, but it did not. In any event, the Complaint concedes that “[i]t is the state’s
policy under these circumstances to allow citizen groups . . . to intervene by stipulation in the state
court enforcement action.” (Doc. No. 1 at ¶ 19.) The TWQCA’s imperfect comparability to the
CWA therefore does not prevent the application of the diligent prosecution bar here. 4 What is
determinative is the degree to which both actions are premised on the violation of the same
standard or limitation, namely the NPDES Permit.
2. Scope of Allegations
Plaintiffs next argue that their Complaint should not be dismissed because it targets
different violations than the State Enforcement Action. “[A] diligent prosecution bar only applies
to those issues sought to be addressed in a citizen action that overlap with those issues sought to
be addressed by the government’s suit.” United States v. Bd. of Cty. Comm’rs of Hamilton Cty.,
Ohio, No. 1:02 CV 00107, 2005 WL 2033708, at *11 (S.D. Ohio Aug. 23, 2005) (citing Frilling
v. Vill. of Anna, 924 F. Supp. 821, 836 (S.D. Ohio 1996)). Without such a limitation, the diligent
prosecution bar would mean that a government enforcement action premised on even a single
violation would prevent citizen suits for all, even wholly unrelated, violations. Plaintiffs contend
4
That is not to say, however, that differences between a state statutory cause of action and the
CWA will always be immaterial to the question of whether 33 U.S.C. § 1365(b)(1)(B) should
apply. The Court’s opinion in this matter does not foreclose the possibility that, in some cases, the
procedural inadequacies of a state statute will be so great that they are incompatible with the very
concept of diligent prosecution. Here, however, particularly in light of the State’s policy of
allowing citizen groups to intervene, that does not appear to be the case.
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that they carefully drafted their Complaint in this action not to overlap with the State’s. TVA
argues, in response, that the appropriate test for determining overlap between this case and the
State Enforcement Action is not whether a technical distinction can be drawn between the
pleadings, but whether they seek to abate and remediate the same issues. See, e.g., Karr v. Hefner,
475 F.3d 1192, 1199 (10th Cir. 2007) (applying diligent prosecution bar despite consent decree’s
omission of several specific violations alleged by citizen because the consent decree had “as its
underlying purpose the resolution of all claims”).
Plaintiffs have identified five sets of allegations raised by their Complaint that are, they
contend, omitted from the State Enforcement Action. The first four cite specific types of unlawful
discharge of pollutants:
(1) unauthorized discharges through hydrologic flow into waters of the United
States ([Doc. No. 1] at ¶¶ 151–161); (2) improper use of Sinking Creek, a water of
the United States, as a wastewater treatment facility (id. at ¶¶ 162–171);
(3) unlawful contamination of the groundwater and Cumberland River from the
Abandoned Ash pond (id. at ¶¶ 172–175) (“Because the State complaint does not
include claims for contamination of the Cumberland River from the Abandoned
Ash Pond [rather than just the groundwater], the Conservation Groups are enforcing
these violations of the Clean Water Act in this Complaint”); [and] (4) unlawful
contamination of the groundwater and Cumberland River from the Ash Pond
Complex (id. at ¶¶ 176–180) (“Because the State Complaint does not include claims
for contamination of the Cumberland River from the Ash Pond Complex, the
Conservation Groups are enforcing these violations of the Clean Water Act in this
Complaint”) . . . .
(Doc. No. 19 at 10–11.) Finally, Plaintiffs point out that their Complaint alleges violations based
on a number of provisions of the NPDES Permit that the State did not cite in its own complaint.
(Id. at 11.)
Plaintiffs are correct that its Sinking Creek allegations are nowhere to be found in the State
Enforcement Action. Similarly, a review of the State’s complaint confirms that, with regard to the
Non-Registered Site, the State Enforcement Action is targeted at groundwater contamination, not
15
contamination of the Cumberland River through either seeps or any other leaks or hydrologic
connections. (See Doc. No. 13-5 at ¶¶ 20–21.) The Court therefore agrees that discharges from
the Non-Registered Site to the Cumberland, either directly or otherwise, represent a discrete set of
allegations raised by Plaintiffs in this Court that are not barred by the pendency of the State
Enforcement Action.
With regard to the Ash Pond Complex, however, the State’s complaint can plausibly be
read to refer to both groundwater and surface water contamination.
Specifically, the State’s
complaint pleads violations of the TWQCA arising out of “[a]reas in the dikes where impounded
wastewater may [sic] or is escaping from the Ash Pond Complex[,] generally referred to as seeps,”
without limiting its allegations to groundwater only. (Id. at ¶¶ 35–37, 51.) Nothing in the State’s
complaint suggests that its claims related to seeps do not contemplate discharges into the
Cumberland River as well as the groundwater. Accordingly, the Court agrees with TVA that this
action overlaps, at least in part, with the State Enforcement Action with regard to both ground and
surface water contamination from the Ash Pond Complex.
The Court agrees with Plaintiffs, however, that their decision to craft their federal
Complaint to reach all hydrologic connections, not merely seeps, results in their having pled
farther-reaching allegations than the State raised in the Chancery Court. At least as it pertains to
the Ash Pond Complex, the State’s complaint appears to limit itself to leaks that can be
characterized as seeps. Plaintiffs’ federal Complaint, in contrast, contemplates both leaks that are
purely seeps and leaks based entirely or in part on faster-moving conduit flows, such as through
sinkholes and fissures. (Compare Doc. No. 1 at ¶ 152 with Doc. No. 13-5 at ¶¶ 35–37, 51.) The
Court therefore concludes that Plaintiffs’ allegations that involve forms of wastewater flow other
than seeps alone do not overlap with the State Enforcement Action.
16
As for the permit violations, the State’s complaint expressly alleges violations of Parts
II.A.4.a and II.C.1, but also makes broader reference to “unpermitted discharges,” a phrase that,
albeit not grounded in a specific citation to NPDES subsections, can be fairly read to encompass
the terms of the permit as a whole. (Doc. No. 13-5 at ¶¶ 51–53.) The appropriate test for
determining which permit-based claims overlap with the State Enforcement Action therefore is
not to mechanically check off which provisions the State has cited, but to look to the substance of
the underlying allegations. With regard to alleged unauthorized discharges, it is the view of the
Court that the distinctions raised in the preceding paragraphs adequately cover where the
respective complaints do and do not overlap.
While the State’s complaint was in some ways crafted narrowly, the Complaint in this
action was crafted broadly, with references to many alleged violations that plainly overlap with
the State Enforcement Action. Plaintiffs, however, have fairly pled some allegations that do not
overlap: unlawful use of Sinking Creek as a wastewater treatment facility; unauthorized discharge
to the Cumberland River from the Non-Registered Site; and discharge to the Cumberland River
from the Ash Pond Complex through hydrologic connections that cannot be characterized solely
and exclusively as seeps alone. These conceptually distinct allegations are, contrary to TVA’s
argument, simply not the “same issues” being pursued by the State (Doc. No. 24 at 5). TVA’s
conclusory assertion that the State Enforcement Action will remediate issues that are not named
in the State’s complaint is insufficient to deprive this Court of its jurisdiction to consider those
allegations.
3. Lack of Diligent Prosecution
17
Plaintiffs argue that none of their claims should be dismissed under the diligent prosecution
bar, because that State’s prosecution has not been diligent. The standard for determining whether
an action is being diligently prosecuted, however, has been described as “quite deferential,”
requiring a plaintiff to “meet a high standard to demonstrate that [the government] has failed to
prosecute a violation diligently.” Karr, 475 F.3d at 1198. “[A] CWA enforcement action will be
considered diligent where it is capable of requiring compliance with the Act and is in good faith
calculated to do so.” The Piney Run Pres. Ass’n v. The Cty. Comm’rs Of Carroll Cty., Md., 523
F.3d 453, 460 (4th Cir. 2008) (citation omitted).
“Section 1365(b)(1)(B) does not require
government prosecution to be far-reaching or zealous. It requires only diligence. Nor must an
agency’s prosecutorial strategy coincide with that of the citizen-plaintiff.” Karr, 475 F.3d at 1197.
Plaintiffs’ argument that the State Enforcement Action is not being prosecuted diligently
consists in large part of Plaintiffs protesting the pace and aggressiveness of the State’s litigation
efforts. Plaintiffs take particular issue with three features of the State Enforcement Action: first,
that TDEC Commissioner Robert Martineau allegedly publicly acknowledged that TVA would
“rather be dealing with [TDEC] than a federal judge” (Doc. No. 1-6 at 3); second, that the State
did not act diligently to advance the litigation in the months immediately following the filing of
its complaint (Doc. No. 19 at 12); and third, that the agreed injunctive order currently in place in
the State Enforcement Action does not itself require TVA to come into compliance with the CWA
(Doc. No. 111 at 2).
On close examination, however, nothing Plaintiffs have identified rises to the level of
showing bad faith or suggesting that the State Enforcement Action is incapable of bringing about
compliance with the underlying standards. Insofar as Martineau’s statement to the press would be
appropriate for the Court’s consideration, it is clear from the context of the statement that
18
Martineau was (1) merely attempting to restate something that a TVA representative had allegedly
said and (2) the issue was posed to Martineau by a reporter in reference to TVA’s alleged lesser
exposure to penalties in a state, rather than federal, action. (Doc. No. 1-6 at 3) Even if TVA would
prefer to be in State court, and even if the State is aware of that preference, that alone would not
amount to a showing of bad faith. As to the delay early in the State Enforcement Action litigation,
the experience of the Court is that comparable delays are not so unusual to give rise to an inference
of a lack of diligence. Finally, it is unsurprising that the agreed injunctive order in the State
Enforcement Action does not itself require compliance, because it does not purport to be a final
resolution of the State’s allegations. Rather, it appears to be an ordinary intermediate mechanism
for managing the flow of the case and the underlying fact finding. (Doc. No. 42-2 at 3–4.) Entering
such an order is in no way incompatible with—and may, in some instances, be evidence of—
diligent prosecution. Although this Court agrees with Plaintiffs that their federal Complaint
includes some allegations that the State is not prosecuting at all, there is no basis for concluding
that, for the claims the State is prosecuting, it is not prosecuting them diligently.
4. State Law
Plaintiffs finally argue that the diligent prosecution bar should not apply, because the
TWQCA itself includes language to the effect that the Act is not intended to estop efforts by any
party, such as Plaintiffs, to abate pollution. See Tenn. Code Ann. § 69-3-118(b). Plaintiffs’
argument misunderstands the relationship between the TWQCA and the CWA. The diligent
prosecution bar is a limitation imposed by federal law and enjoying the authority granted it under
the Supremacy Clause, U.S. Const. art. VI, cl. 2. The TWQCA can no more render the diligent
prosecution bar inapplicable than the State of Tennessee can repeal the CWA altogether.
5. Application of the Bar
19
At the time Plaintiffs filed their Complaint, the Gallatin Plant was already the subject of a
pending enforcement action brought by the State, and, because that State-initiated action has been
litigated in apparent good faith and diligence, Plaintiff’s claims must be dismissed insofar as they
overlap with the allegations at issue in the State’s complaint. Some of Plaintiffs’ allegations,
however, are not barred because, at the time this case was brought, they were not at issue in the
State matter. The Court is well aware that the non-overlapping allegations are still closely
connected, and that the crisscrossing tracks of the cases will undoubtedly give rise to complications
and redundancies. The alternative, though, is to treat the State’s decision to proceed narrowly as
an absolute bar on citizen enforcement against violations that the State complaint does not even
consider. Such a holding would run counter to the well-recognized role of citizen suits in
supplementing government authority under the CWA. Accordingly, the Court will grant TVA’s
Motion (Doc. No. 12) only in part and will dismiss the Plaintiffs’ Claims A, C, D, and E under the
diligent prosecution bar only insofar as they pertain to violations other than the following: unlawful
discharge of pollutants into Sinking Creek; unlawful discharge of pollutants into the Cumberland
River from the Non-Registered Site; and unlawful discharge of pollutants from the Ash Pond
Complex through hydrologic flows that cannot be characterized as consisting of seeps alone. Any
claim premised on one of those three classes of allegation— whether based on statute, rule or
permit—survives the diligent prosecution bar.
C. Abstention
In its motion seeking dismissal under the diligent prosecution bar (Doc. No. 12), TVA
suggests that, if the Court does not dismiss this matter outright, it should abstain from proceeding
20
under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Pursuant
to the Supreme Court’s holding in Colorado River, “a federal court may, in certain limited
circumstances, decline to adjudicate a claim that is already the subject of a pending state-court
case.” RSM Richter, Inc. v. Behr Am., Inc., 729 F.3d 553, 556 (6th Cir. 2013). A court called
upon to consider Colorado River abstention must engage in a two-step process: first, the Court
must determine if the State and federal proceedings are “actually parallel” to one another; and then,
only if the threshold requirement of parallelism is met, the Court will engage in a multi-factor
balancing analysis to decide whether to abstain. Romine v. Compuserve Corp., 160 F.3d 337,
339–41 (6th Cir. 1998). Underlying this analysis is the fundamental principle that “federal courts
have a strict duty to exercise the jurisdiction that is conferred upon them by
Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (citing Colorado River,
424 U.S. at 821). Accordingly, “[a]bstention from the exercise of federal jurisdiction is the
exception, not the rule.” Colorado River, 424 U.S. at 813. Because abstention is an “extraordinary
and narrow exception to the duty of a District Court to adjudicate a controversy properly before
it,” the Court will only abstain in cases presenting “the clearest of justifications” for doing
so. Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002).
In light of the high standard required to justify abstention, the Court concludes that
Plaintiffs’ case, as it exists after the application of the diligent prosecution bar, is not sufficiently
parallel to justify this Court’s inaction under Colorado River. “For the cases to be considered
parallel, ‘substantially the same parties must be contemporaneously litigating substantially the
same issues,’ and ‘the critical question is whether there is a substantial likelihood that the state
litigation will dispose of all claims presented in the federal case.’” Summit Contracting Grp., Inc.
v. Ashland Heights, LP, No. 3:16-CV-17, 2016 WL 2607056, at *3 (M.D. Tenn. May 6, 2016)
21
(quoting Capitol Wholesale Fence Co. v. Lumber One Wood Preserving, LLC, No. 3:13-cv-00521,
2014 WL 7336236, at *3 (M.D. Tenn. Dec. 22, 2014) (emphasis added)).
TVA has not
demonstrated that the State Enforcement Action is substantially likely to dispose of claims arising
out of discharges from the Non-Registered Site into the Cumberland River, discharges into Sinking
Creek, or discharges from the Ash Pond Complex through leaks that are not seeps. Accordingly,
the Court will not abstain in this matter, for the same reasons it did not dismiss the Complaint in
full under the diligent prosecution bar.
D. Claims for Penalties
TVA next asks the Court to dismiss Plaintiff’s claims for civil penalties because TVA is
an agency of the United States entitled to immunity from penalties under United States Department
of Energy v. Ohio, 503 U.S. 607, 611 (1992) (“DOE v. Ohio”). (Doc. No. 28.) Plaintiffs argue
that TVA is not entitled to sovereign immunity because it is a corporate instrumentality rather than
a federal agency, and that, in the alternative, its immunity has been unequivocally waived.
As it concerns the government of the United States, “[s]overeign immunity is the familiar
principle that the government cannot be sued except by the consent of Congress.” United States
v. Droganes, 728 F.3d 580, 589 (6th Cir. 2013) (citing United States v. Testan, 424 U.S. 392, 399
(1976); United States v. Michel, 282 U.S. 656, 659 (1931)). Sovereign immunity extends not only
to the United States acting under its own name, but also its agencies. Parrett v. Se. Boll Weevil
Eradication Found., Inc., 155 F. App’x 188, 191 (6th Cir. 2005) (citing FDIC v. Meyer, 510 U.S.
471, 475 (1994); United States v. Lee, 106 U.S. 196, 205 (1882)). A waiver of sovereign immunity
“must be express, clear and unequivocal.” Reed v. Reno, 146 F.3d 392, 398 (6th Cir. 1998)
(citing Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir. 1993)). “Further, the language of any
22
waiver of sovereign immunity is strictly construed in favor of the United States.”
Id.
(citing Markey v. United States, 27 Fed. Cl. 615, 622 (Fed. Cl.1993)).
In DOE v. Ohio, the Supreme Court held that the terms of the CWA itself do not waive
“the National Government’s sovereign immunity from liability for civil fines imposed by a State
for past violations” of the Act. 503 U.S. at 611. In that case, the State of Ohio had sued the United
States Department of Energy (“DOE”) alleging that the DOE had violated state and federal
antipollution laws including the CWA. The DOE did not dispute that it was obligated to comply
with the CWA, or that it was potentially subject to injunctive relief or coercive fines—that is to
say, fines intended to induce compliance—under the statute. It argued only that, as a federal
defendant, it could not be assessed fines based purely on past violations. Id. at 613–14. The Court
agreed, concluding that the CWA’s provisions involving federal government entities did not
amount to an unequivocal waiver of liability for non-coercive penalties. Id. at 627, 629. At least
one Circuit has applied the reasoning of DOE v. Ohio to conclude that punitive fines may not be
assessed against TVA. Sierra Club v. TVA, 430 F.3d 1337, 1357 (11th Cir. 2005).
The law of the Sixth Circuit is that “TVA, as an agency of the United States, enjoys
sovereign immunity unless Congress specifically waives it.” Diversified Energy, Inc. v. TVA, 339
F.3d 437, 444 (6th Cir. 2003). “Congress, however, has waived the sovereign immunity of certain
federal entities from the times of their inception by including in the enabling legislation provisions
that they may sue and be sued.” Loeffler v. Frank, 486 U.S. 549, 554 (1988). TVA is one such
entity: pursuant to 16 U.S.C. § 831c(b), TVA “[m]ay sue and be sued in its corporate name.”
“Courts have read this ‘sue or be sued’ clause as making the TVA liable to suit in tort, subject to
certain exceptions.” United States v. Smith, 499 U.S. 160, 168–69 (1991). Unlike more specific
waivers of sovereign immunity, a broad waiver pursuant to a sue-and-be-sued clause “should be
23
liberally construed.” Loeffler, 486 U.S. at 554 (quoting FHA v. Burr, 309 U.S. 242, 245 (1940)).
Accordingly, the Supreme Court has held that federal “sue-and-be-sued” entities should generally
be held to have a capacity for “liability [that] is the same as that of any other business.” Franchise
Tax Bd. of Cal. v. U.S. Postal Serv., 467 U.S. 512, 520 (1984).
In the past, the Sixth Circuit has gone so far as to suggest that “[i]t is clear” under TVA’s
sue-and-be-sued clause that “the TVA enjoys no sovereign immunity.” Queen v. TVA, 689 F.2d
80, 85 (6th Cir. 1982) (emphasis added). In intervening years, though, the Supreme Court has
reemphasized the high bar to be applied to claims that a government has waived its sovereign
immunity, 5 and the Sixth Circuit has more recently taken a comparatively cautious approach to
TVA’s waiver. See Diversified Energy, 339 F.3d at 444 (construing TVA’s sovereign immunity
in the context of express jurisdictional limitations in the Contract Disputes Act). Nevertheless,
TVA has not identified any intervening precedents to suggest that the Sixth Circuit has wholly
overruled its prior recognition that the sue-and-be-sued clause serves as a broad, general waiver of
sovereign immunity unless there is an applicable exception. See also N.C. ex rel. Cooper v. TVA,
515 F.3d 344, 348 (4th Cir. 2008) (“TVA’s ‘sue-and-be-sued’ clause stands as a broad waiver of
sovereign immunity . . . .”).
5
See, e.g., United States v. Bormes, 133 S. Ct. 12, 16 (2012) (“Sovereign immunity shields the
United States from suit absent a consent to be sued that is unequivocally expressed.” (internal
quotation marks and citations omitted)); Sossamon v. Texas, 563 U.S. 277, 287 (2011) (“[W]here
a statute is susceptible of multiple plausible interpretations, including one preserving immunity,
we will not consider a State to have waived its sovereign immunity.”); Lane v. Peña, 518 U.S. 187,
192 (1996) (“A waiver of the Federal Government’s sovereign immunity must be unequivocally
expressed in statutory text . . . .”); United States v. Nordic Vill. Inc., 503 U.S. 30, 33 (1992)
(“Waivers of the Government’s sovereign immunity, to be effective, must be unequivocally
expressed.” (internal quotation marks and citations omitted)).
24
Accordingly, while TVA tries repeatedly to frame the question before the Court as whether
the sue-and-be-sued clause “alters” or “transforms” the waiver scheme of the CWA (Doc. No. 29
at 5–6; Doc. No 31 at 2), the appropriate inquiry is the opposite: whether the CWA in some way
alters the broad, preexisting waiver to be found in the sue-and-be-sued clause. The Court
concludes that it does not.
In Loeffler v. Frank, the Supreme Court considered the interplay
between a federal cause of action with a limited waiver of sovereign immunity and a federal
entity’s preexisting, broad sue-or-be-sued waiver. 486 U.S. at 565. In that case, the United States
Postal Service was subject to a broad waiver of sovereign immunity under its authorizing statutes.
The plaintiff, however, sued under Title VII, which had a narrower waiver of sovereign immunity,
in particular with regard to the recovery of prejudgment interest. Id. at 556–59. The Court
concluded that the original, broader waiver remained intact, because “neither the language of . . .
Title VII nor its legislative history contains an expression that the waiver of sovereign immunity
it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sueand-be-sued clauses.” Id. at 562.
The CWA similarly evinces no intent to change the scope of TVA’s well-established
waiver of sovereign immunity. DOE v. Ohio was not premised on the conclusion that Congress
reached an express and deliberate conclusion that government entities should be subject to
coercive, but not punitive, CWA fines. Rather, the Supreme Court based its holding on the CWA’s
silence and ambiguity on the matter. 503 U.S. at 628. Undoubtedly, silence and ambiguity are
grounds for concluding that a statute does not itself waive an entity’s sovereign immunity. Here,
however, the immunity had already been waived. The Court sees no reason to read the CWA’s
silence and ambiguity as grounds for decreasing the scope of a waiver that already
existed. See Good v. Ohio Edison Co., 149 F.3d 413, 418 (6th Cir. 1998) (“[A] waiver of sovereign
25
immunity in a new cause of action will not be presumed to be exclusive unless such an intention
is expressly mandated by Congress.”) (citing Loeffler, 486 U.S. at 562)).
Nor is the Court persuaded by TVA’s citation to Missouri Pacific Railroad v. Ault, 256
U.S. 554 (1921), and that case’s progeny for the proposition that, even when an instrumentality is
subject to a broad, general waiver of immunity, a court cannot impose a penalty in the absence of
an additional waiver specifically addressing punitive remedies. As the Third Circuit has observed,
“Ault concerned the sovereign immunity of the government itself,” not the immunity of a Loefflertype entity that, like TVA, has been “launched . . . into the commercial world.” Pennsylvania v.
U.S. Postal Serv., 13 F.3d 62, 66 (3d Cir. 1993) (quoting Franchise Tax Bd., 467 U.S. at 520).
TVA nevertheless suggests that the Sixth Circuit adopted TVA’s preferred rule by applying Ault to
the FDIC in Commerce Federal Savings Bank v. FDIC, 872 F.2d 1240, 1247-48 (6th Cir. 1989).
TVA is correct that the FDIC, like TVA, is subject to a sue-or-be-sued provision. See 12 U.S.C.
1819(a) ([T]he Corporation . . . shall have power . . . [t]o sue and be sued, and complain and defend,
by and through its own attorneys, in any court of law or equity, State or Federal.”). TVA is
mistaken, though, in arguing that the Sixth Circuit premised its holding on finding an exception or
limitation to that provision. The Commerce Federal opinion simply does not discuss, let alone
find an exception to, the sue-and-be-sued clause. Rather, the court based its holding on the fact
that “the FDIC is clearly an instrumentality of the United States, and . . . the appellant has failed
to identify any express Congressional authority permitting imposition of punitive fines or
penalties.” 872 F.2d at 1258. That rationale is merely a statement of the applicable blackletter
law that applies in the absence of a statutory waiver. The Court is therefore not convinced
that Commerce Federal should be read as a sub rosa reversal of the Circuit’s longstanding case
law acknowledging the broad, liberal construction of TVA’s sue-and-be-sued clause. The Court
26
therefore concludes that Plaintiffs’ claims for penalties are permitted under the broad waiver of
sovereign immunity found in 16 U.S.C. § 831(c).
E. Jury Demand
TVA argues next that the Court should strike Plaintiffs’ jury demand because a plaintiff
has no right to a jury trial in an action against a federal agency unless expressly granted that right
by law. (Doc. No. 28.) Although Plaintiffs do not dispute the general proposition that the right to
a jury trial in an action against the United States must be expressly granted, they argue that that
rule does not extend to corporate instrumentalities, like TVA, that are the subject of broad sueand-be-sued clauses. The Sixth Circuit considered these respective arguments, albeit in an
unpublished opinion, in Davis v. Henderson, 238 F.3d 420 (table), 2000 WL 1828476 (6th Cir.
Dec. 4, 2000). There, the plaintiff postal employee brought suit against the Postmaster General,
who was subject to a Loeffler general waiver of sovereign immunity. The court concluded that
“Congress has provided for a general waiver of the Postal Service’s sovereign immunity, but that
general waiver did not create a right to a jury trial.” Id. at *2.
The presumption against finding a right to a jury trial in a suit against the United States is
founded in part on the protections of sovereign immunity, but also in significant part on the
historical understanding of the right to a civil jury trial itself, as codified by the Seventh
Amendment. “It has long been settled that the Seventh Amendment right to trial by jury does not
apply in actions against the Federal Government.” Lehman v. Nakshian, 453 U.S. 156, 160
(1981); see also Galloway v. United States, 319 U.S. 372, 388 (1943) (holding that Seventh
Amendment does not apply to actions against the United States because “[i]t hardly can be
maintained that under the common law in 1791 jury trial was a matter of right for persons asserting
claims against the sovereign”).
Accordingly, insofar as any plaintiff has a right to a jury trial
27
against the United States, it is not because the Seventh Amendment applies to the matter by its
own terms, but “because Congress[,] in the legislation cited, has made it applicable.” Galloway,
319 U.S. at 389. In that regard, a provision granting a jury trial against the United States performs
two functions: first, it waives the sovereign immunity that would deprive the courts of jurisdiction
over such a case; and second, it creates a procedural right to a jury trial that otherwise would not
have existed under the Constitution alone.
The sue-and-be-sued clause, therefore, at best gets Plaintiffs halfway to a jury trial: it may
remove the barrier created by sovereign immunity, but nothing in its language suggests that it
creates a right to a jury in the first place. Plaintiffs do not identify any other specific statutory
provisions entitling them to a jury trial, relying instead on the Seventh Amendment, as applied to
the CWA in Tull v. United States, 481 U.S. 412, 427 (1987). Plaintiffs argue that the Seventh
Amendment’s failure to reach actions against the United States should not be read to include
corporate instrumentalities such as TVA. The well-established practice in the Sixth Circuit,
however, is to recognize TVA’s status as a federal agency, even if it is one that has waived its
protection from suit. See Gillham v. TVA, 488 F. App’x 80, 81 (6th Cir. 2012) (“TVA is a
‘wholly-owned corporate agency and instrumentality of the United States.’” (quoting Hill v. U.S.
Dep’t of Labor, 65 F.3d 1331, 1333 (6th Cir. 1995))); McCarthy v. Middle Tenn. Elec.
Membership Corp., 466 F.3d 399, 411 n.18 (6th Cir. 2006) (“[T]here is no question that ‘TVA is
an agency and instrumentality of the United States.’”); TVA v. Kinzer, 142 F.2d 833, 837 (6th Cir.
1944) (“[TVA] is plainly a governmental agency or instrumentality of the United States.”). The
Court therefore will adopt the rule set forth in Davis v. Henderson and strike Plaintiffs’ jury
demand.
F. Permit Shield
28
TVA argues next that the CWA’s “permit shield” provision, 33 U.S.C. § 1342(k), entitles
it to dismissal or judgment on the pleadings with regard to two sets of allegations: (1) all
allegations, under any of Plaintiffs’ claims, premised on seeps from the ash ponds (Doc. No. 51);
and (2) Plaintiffs’ Claim B, premised on the improper use of Sinking Creek as a water of the United
States (Doc. No. 12). The permit shield provides that “[c]ompliance with a permit issued pursuant
to [the NPDES] shall be deemed compliance” with various standards and limitations under the
CWA, including those at issue here. Id. The purpose of the permit shield is “to relieve [permit
holders] of having to litigate in an enforcement action the question whether their permits are
sufficiently strict.”
Sierra Club v. ICG Hazard, LLC, 781 F.3d 281, 285 (6th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 n.28 (1977)). The Sixth
Circuit has adopted a two-pronged analysis for determining whether the permit shield will apply
to a particular allegation: “[f]irst, the permit holder must comply with the CWA’s reporting and
disclosure requirements”; and, “[s]econd, . . . the discharges must be within the permitting
authority’s ‘reasonable contemplation.’” ICG Hazard, 781 F.3d at 286 (quoting Piney Run Pres.
Ass’n v. Cty. Comm’rs of Carroll Cty., Md., 268 F.3d 255, 267 (4th Cir. 2001)). The question of
“reasonable contemplation” focuses in particular on whether the alleged discharges were “within
the reasonable contemplation of the permitting authority during the permit application
process.” Id. (quoting Piney Run, 268 F.3d at 267) (emphasis added).
In Sierra Club v. ICG Hazard, LLC, the Sixth Circuit concluded that discharges of
pollutants that are not expressly included in a permit may still be subject to the shield if the
pollutants had been within the reasonable contemplation of the permitting agency when the permit
was issued. Id. at 286–88. For example, in that case, the defendant was accused of making
unlawful discharges of selenium, and the relevant permit did not expressly authorize discharge of
29
selenium into the relevant waters. The court nevertheless applied the permit shield to selenium
discharges, because its review of the permitting process and context revealed that the permitting
authority was aware of and had considered the possibility of selenium discharges when it issued
the permit. Id. at 290.
While Plaintiffs do not dispute that this rule applies to discharges of unnamed pollutants,
they urge the Court not to extend it to unnamed outfall locations, or at least not unnamed outfall
locations that Plaintiffs argue may be characterized as independent point sources. Such a rule,
they argue, is inconsistent with the CWA’s provisions requiring an NPDES permit for “all point
sources of discharge of pollutants.” 33 U.S.C. §1311(e). Nothing in the text of the permit shield
provision, however, suggests that it should apply differently to violations based on the location of
the discharge than it does to violations based on which pollutants are involved. The determinative
issue is whether the party is in “[c]ompliance with” the relevant NPDES permit, 33 U.S.C. §
1342(k), which the Sixth Circuit has read to mean that the discharges at issue were within the
reasonable contemplation of the issuing agency. ICG Hazard, 781 F.3d at 286. As this Court reads
both the case law and the purposes underlying the “reasonable contemplation” test, the Court
should evaluate every feature of an alleged violation to determine if the relevant discharge or
possibility thereof was adequately disclosed and reasonably contemplated. That inquiry may lead
the Court to examine the pollutants at issue, but also the location of discharge, its magnitude, or
any other relevant trait. The Court’s analysis will inevitably be closely tied to a review of what
the permittee itself disclosed, because “the scope of the permit as well as the discharge limitations
contained therein are based largely on information provided by the permit applicant.” 6 In Re
6
For this reason, the Court rejects Plaintiffs’ argument that the Court should restrict itself to
considering only the text of the NPDES Permit under the parol evidence rule. The permit shield
rule, as adopted by the Sixth Circuit, requires the Court to look to the permitting process itself to
30
Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964, at *10 (E.P.A. May 15, 1998). The Court
now turns to the classes of allegation to which TVA seeks to apply the permit shield.
1. Seeps
TVA argues that all of Plaintiffs’ claims based on seeps are categorically barred by the
permit shield because seeps were within the reasonable contemplation of TDEC when it issued the
NPDES Permit. 7 TVA relies on the fact that, during the comment period for the NPDES Permit,
the potential for seeps was brought to TDEC’s attention, and TDEC concluded that the permit
adequately accounted for that risk. Specifically, after TDEC published its “Permit Rationale” for
public comment, it received comments about the possibility of seeps, which TDEC considered and
acknowledged. (Doc. No. 1-2 at 48.)
That TDEC contemplated some seeps under the permit, however, does not categorically
shield TVA from liability for all seeps. TDEC’s responses to comments describe the type of
seepage that the agency anticipated from the ponds in a number of ways, for example: as having a
“flow rate . . . so low as not to be measurable”; as “more similar to a nonpoint source discharge,
as it is diffused over a wide area”; and, perhaps most importantly, as resulting in only “de minimus
[sic]” additional loading of pollutants. (Doc. No. 1-2 at 48.) The permit shield only protects
discharges that the permit itself reasonably contemplates, and the NPDES Permit did not
contemplate any and all manner of seepage without limitation. Moreover, the permit’s toleration
of even the contemplated seepage is in the context of TVA’s presumed compliance with NPDES
determine what manner of discharges were disclosed and reasonably contemplated when the
permit was under consideration. ICG Hazard, 781 F.3d at 286 (quoting Piney, 268 F.3d at 267).
7
Although the Court has concluded that the diligent prosecution bar prevents the Plaintiffs from
bringing claims based solely on seeps alone from the Ash Pond Complex, any claims involving
seeps from the Non-Registered Site have so far survived TVA’s motions.
31
Permit provisions specifically designed to address the risk of seeps. Part III.B.(2) through (4) of
the NPDES Permit, for example, require that TVA comply with self-inspection requirements
intended to detect, among other things, seepage in the ponds’ earthen dikes, and that TVA take
timely remediation measures if it discovers any changes indicating a potential compromise in the
structural integrity of the impoundment. (Doc No. 1-2 at 26.) Among the failures Plaintiffs allege
in their Complaint is that TVA “failed to properly maintain the impoundments to prevent seeps,
or to properly inspect, identify, and remediate these seeps.” (Doc. No. 1 at ¶ 65.) Finally, the mere
fact that TDEC was aware of some seeps or the possibility thereof does not mean that TVA
necessarily fully and accurately disclosed all relevant seeps at the time the NPDES Permit was
reissued. Among the key allegations in this case is that TVA’s actions have been insufficient to
adequately identify and monitor the seeps. A permit applicant cannot disclose discharges that it
does not know about.
The Court accordingly does not read the NPDES Permit as extending its permit shield
protection categorically to any and all seeps. That is not to say that the permit shield may not serve
as a defense to specific allegations. If TVA can eventually show that specific seeps were only of
the type contemplated by the permit, and that the seeps’ detection, monitoring, reporting,
disclosure, and, if necessary, remediation, were handled in full compliance with the permit, the
permit shield may apply. Such a conclusion, however, cannot be reached on the pleadings alone.
TVA’s Motion for Judgment on the Pleadings as to All of Plaintiffs’ Claims Regarding Seeps
(Doc. No. 51) will therefore be denied.
2. Sinking Creek
TVA argues next that Plaintiffs’ Claim B, which challenges the Gallatin Plant’s use of the
alleged Sinking Creek area for the Ash Pond Complex, should be dismissed because the use of
32
Ash Ponds A and E as treatment ponds was contemplated by and in compliance with the NPDES
Permit. As the Complaint concedes, “[t]he NPDES Permit treats the discharges of waste streams
. . . into Sinking Creek as internal outfalls within a waste treatment system,” rather than as
discharges into the waters of the United States. (Doc. No. 1 at ¶ 168.)
It is clear from the
Complaint and the NPDES Permit itself that TVA’s use of the Ash Pond Complex as a wastewater
treatment facility is central to the overall treatment system that the Permit envisions. (See Doc.
No. 1 at ¶ 168; Doc. No. 1-2 at 57 (describing ash ponds)). Nor can it be said that TVA failed to
disclose its plans for using the area at issue for its series of Ash Ponds. (See, e.g., Doc. 18-6 at
PageID 619 (including map of ash ponds in permit renewal application)). TVA can hardly be
blamed for its failure to make further disclosures or reports related to Sinking Creek, given that
the NPDES Permit itself had accepted its premise that the Ash Pond Complex was a treatment
facility.
As TVA correctly points out, Plaintiffs’ Sinking Creek argument is in essence a collateral
attack on the permit itself. See Nat’l Parks Conservation Ass’n v. TVA, 175 F. Supp. 2d 1078–79
(E.D. Tenn. 2001) (holding that citizens could not collaterally challenge terms of Clean Air Act
permit). Because the flow of contaminants from the Gallatin Plant to Ash Ponds A & E is both
disclosed under and reasonably contemplated by the NPDES permit, TVA’s Motion to Dismiss
for Failure to State a Claim (Doc. No. 12) will be further granted in part and Claim B will be
dismissed. The Court’s ruling on this issue renders moot TVA’s Motion for Summary Judgment
on Plaintiffs’ Claim B. (Doc. No. 57.)
G. Claims Under Specific Permit Provisions
Finally, TVA seeks judgment on the pleadings with regard to Plaintiffs’ Claim E and its
subclaims, each arising out of an alleged violation of a different term of the NPDES Permit. (Doc.
33
No. 102.) With regard to each of the provisions Plaintiff cites, TVA argues either that the provision
is inapplicable or that Plaintiffs have not pled facts setting forth a plausible claim on which relief
can be granted. Generally speaking, the Court must interpret an NPDES Permit in the same manner
as it would a contract, determining first whether a particular term has an unambiguous meaning,
and, if the meaning is ambiguous, looking to the document as a whole, its underlying purpose, and,
if necessary, appropriate extrinsic evidence to aid the Court’s construction. Piney Run, 268 F.3d
at 269–70. While the Court’s interpretation of the Permit is a question of law, Nw. Envtl.
Advocates v. City of Portland, 56 F.3d 979, 982 (9th Cir. 1995), Plaintiffs’ underlying factual
allegations remain entitled to the presumption of truth ordinary to any other motion under Rule
12(c).
1. Subsections I.A.b & c
Plaintiffs’ Claims E.a and E.b allege violations of subsections I.A.b and I.A.c of the
NPDES permit, which provide:
Additional monitoring requirements and conditions applicable to Outfalls 001, 002,
and 004 include:
[....]
b.
The wastewater discharge shall not contain pollutants in quantities that will
be hazardous or otherwise detrimental to humans, livestock, wildlife, plant
life, or fish and aquatic life in the receiving stream. The discharge activity
shall not cause or contribute to violations of water quality criteria as stated
in the TDEC Rules, Chapter 1200-4-2-.03. Under no circumstances may
discharges create an exceedance of the numeric water quality criteria in the
receiving stream for aquatic and human life as stated in State of Tennessee
Rule 1200-4-3.
c.
Sludge or any other material removed by any treatment works must be
disposed of in a manner, which prevents its entrance into or pollution of any
surface or subsurface waters. Additionally, the disposal of such sludge or
other material must be in compliance with the Tennessee Solid Waste
Disposal Act, TCA § 68-31-101 et seq. and the Tennessee Hazardous Waste
Management Act, TCA 68-46-101 et seq.
34
(Doc. No. 1-2 at 11.) Plaintiffs assert that the Gallatin Plant’s alleged unlawful discharges through
contaminated groundwater violate subsection I.A.b and that its seeps violate subsection I.A.c.
(Doc. No. 1 at ¶ 182–88.)
TVA points out, however, that these provisions are by their own terms only “applicable to
Outfalls 001, 002, and 004.” 8 The very essence of Plaintiffs’ allegations, TVA argues, is that the
allegedly unlawful discharges are not happening through authorized outfalls. With regard to
subsection I.A.b, the plain language of the permit supports TVA’s reading. The express target of
subsection I.A.b is “wastewater discharge”; as applied to Outfalls 001, 002, and 004, that language
clearly refers to wastewater discharge from those outfalls. TVA’s argument is less persuasive,
however, with regard to subsection I.A.c. The target of subsection I.A.c is not the wastewater
discharge itself but the disposal of “sludge or other material removed by any treatment works.”
The plain language of the provision clearly encompasses sludge or other material removed by
means other than merely through discharge at the named outfalls. “Removal” through seeps or
other leaks could therefore theoretically be encompassed by the provision.
TVA argues next that subsection I.A.c does not apply because the wastewater allegedly
discharged through its seeps is not sludge. Subsection I.A.c, however, encompasses not only
8
Plaintiffs suggest that the phrase “applicable to Outfalls 001, 002, and 004” should be read only
to refer to “conditions,” and not “monitoring requirements,” and that subsections I.A.b and I.A.c
are therefore generally applicable to all discharges as monitoring requirements. (Doc. No. 119 at
10.) This argument is unavailing for two reasons. First, the paragraph immediately prior to these
provisions discusses discharges of certain types of cooling water and concludes, “There are no
limits or monitoring requirements for these discharges.” (Doc. No. 1-2 at 11.) It is therefore clear
that the permit is indeed discussing discharge-specific monitoring requirements as well as
conditions. Second, subsections I.A.b and I.A.c are simply not monitoring requirements.
Subsections I.A.e and I.A.g, for example, do actually address monitoring and reporting of
discharges. Subsections I.A.b and I.A.c are plainly conditions with which the discharges must
comply.
35
sludge but “any other material removed by any treatment works.” It is a well established “canon
of interpretation that words in a list should be given separate meaning to avoid
surplusage.” Crossville, Inc. v. Kemper Design Ctr., Inc., No. 2:09-0120, 2010 WL 2650731, at
*4 (M.D. Tenn. July 2, 2010) (citing Snodgrass v. Snodgrass, 295 S.W.3d 240, 248 (Tenn. 2009)).
Subsection I.A.c therefore should be construed to reach not merely sludge, but any material
removed by treatment works. Judgment on the pleadings is therefore inappropriate as to Claim
E.b.
2. Subsection II.A.4.a
NPDES Permit subsection II.A.4.a requires TVA to “at all times properly operate and
maintain all facilities and systems (and related appurtenances) for collection and treatment which
are installed or used by the permittee to achieve compliance with the terms and conditions of the
permit.” (Doc. No 1-2 at 19.) Plaintiffs allege that several aspects of TVA’s maintenance of the
ponds has been inadequate to achieve compliance with the permit. (Doc. No 1 at ¶¶ 189–98.)
TVA argues that Plaintiffs’ assertion is a legal conclusion masquerading as a question of fact, and
that its actions were, as a matter of law, in compliance with subsection II.A.4.a. TVA is mistaken.
The question of whether TVA’s maintenance of its ponds has been adequate is unavoidably bound
up with fact and inappropriate for resolution by the Court on the pleadings alone. For example, as
the Court has noted supra, the NPDES permit contemplated seepage from the Ash Ponds at levels
that, at most, would result in de minimis additional pollutant loading. Whether seeps from the
Non-Registered Site exceed de minimis levels raises factual questions both about the seeps
themselves and what would qualify as de minimis in the context of coal ash wastewater discharges.
Whether TVA’s response to the seeps has been sufficient to safeguard the structural integrity of
the ponds—as required by the permit (Doc No. 1-2 at 26)—presents another example of a question
36
of fact. While the construction of the Permit’s terms presents a question of law, a term like
“properly,” used in a specialized setting such as this one, sets forth a standard that must be
understood and evaluated in a factual context that cannot be gathered solely from the four corners
of the document. TVA is not entitled to judgment on the pleadings with regard to claim E.c.
C. Subsection II.C.2
NPDES Permit subsection II.C.2 creates an obligation to inform regulators within twentyfour hours of certain events:
In the case of any noncompliance which could cause a threat to public drinking
supplies, or any other discharge which could constitute a threat to human health or
the environment, the required notice of non-compliance shall be provided to the
Division of Water Pollution Control in the appropriate regional Field Office within
24-hours from the time the permittee becomes aware of the circumstances.
(Doc. No. 1-2 at 17.) The Complaint alleges that TVA violated this provision by failing to alert
regulators when it became aware that its ash ponds had contaminated the surrounding area through
unauthorized discharges. TVA argues that it did not violate the 24-hour notice requirement
because its seeps were contemplated by the NPDES Permit itself. This is merely a reiteration of
TVA’s permit shield argument and fails for the same reason: although the NPDES permit
reasonably contemplated some de minimis seeps, that reasonable contemplation does not create a
shield for any and all manner and volume of seeps possible. Moreover, subsection II.C.2 does not
merely reach instances of noncompliance but also “any other discharge which could constitute a
threat to human health or the environment.” Plaintiffs have adequately pled that the alleged
discharges could constitute a threat to human health or the environment, triggering the notice
provision. Plaintiffs’ Claim E.d therefore cannot be disposed of with judgment on the pleadings.
3. Subsection II.C.3
37
NPDES Permit subsection II.C.3.b forbids “Sanitary Sewer Overflows” at the Gallatin
Plant, which the permit defines as follows: “‘Sanitary Sewer Overflow’ means the discharge to
land or water of wastes from any portion of the collection, transmission, or treatment system other
than through permitted outfalls.” (Doc. No.1-2 at 22.) Plaintiffs contend that all discharges of ash
pond wastewater other than through Outfall 001 are prohibited sanitary sewer overflows. TVA
argues that, in context, the “wastes” mentioned in the definition of “sanitary sewer overflow” refers
only to raw sewage from sanitary wastes, and that the Gallatin Plant has a separate system for
sanitary waste disposal. TDEC regulations define a “sanitary sewer” as a “conduit intended to
carry liquid and water-carried wastes from residences, commercial buildings, industrial plants and
institutions together with minor quantities of ground, storm and surface waters that are not
admitted intentionally.” Tenn. Comp. R. & Regs. 0400-46-02-.02(43). TDEC’s reference to
“liquid and water-carried wastes” appears, on its face, to be plainly capable of encompassing coal
ash wastewater. TVA, however, draws the Court’s attention to public EPA documents that appear
consistent with the position that “sanitary sewer” is a specialized term that would be inapplicable
to wastes other than untreated sewage. See National Pollution Discharge Elimination System
(NPDES),
Sanitary
Sewer
Overflow
(SSO)
Frequent
Questions,
at
https://www.epa.gov/npdes/sanitary-sewer-overflow-sso-frequent-questions#sso (last updated
Nov. 16, 2015); EPA Fact Sheet: Why Control Sanitary Sewer Overflows, at 1 (Jan. 11, 2001)
(“Sanitary sewer overflows (SSOs) are releases of untreated sewage into the environment.”),
available
at
https://www3.epa.gov/npdes/pubs/sso_casestudy_control.pdf.
These
EPA
documents, however, appear to be guides for the edification of a general audience and do not
necessarily resolve the question of how the term “sanitary sewer” might apply to the peculiar
situation of coal ash wastewater that is sluiced to ponds for treatment.
38
The Court is therefore unable, at this stage, to conclude, based only on the pleadings and
documents appropriate for judicial notice in the Rule 12(c) context, that unauthorized coal ash
discharges are, as a matter of law, incapable of qualifying as sanitary sewage overflows. If, once
a factual record is developed, TVA has shown that the accepted understanding of the terms make
it clear that, in context, the only waste at issue is raw sewage, TVA may be entitled to judgment
on this claim. At this stage, however, the request for judgment on the pleadings with regard to
Claim E.e will be denied.
III. MOTION FOR SUMMARY JUDGMENT
Plaintiffs have filed a Motion for Partial Summary Judgment (Doc. No. 106) arguing that
it is entitled to summary judgment on several of its claims because the discharges as conceded by
the TVA are sufficient to give rise to per se violations under the CWA’s regime of strict liability.
A. Standard of Review
In reviewing a motion for summary judgment, this Court will only consider the narrow
questions of whether there is any “genuine dispute as to any material fact” and whether “the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A motion for summary
judgment requires that the Court view the “inferences to be drawn from the underlying facts . . . in
the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)). “The party bringing the summary judgment motion has the initial burden of informing
the Court of the basis for its motion and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts.” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.
2003). After the movant has satisfied this initial burden, the nonmoving party has the burden of
showing that a “rational trier of fact [could] find for the non-moving party [or] that there is a
39
‘genuine issue for trial.’” Matsushita, 475 U.S. at 587. If the evidence offered by the nonmoving
party is “merely colorable,” or “not significantly probative,” or not enough to lead a fair-minded
jury to find for the nonmoving party, the motion for summary judgment should be
granted. Anderson, 477 U.S. at 479-52. “A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Hill v. White, 190 F.3d 427,
430 (6th Cir. 1999) (citing Anderson, 477 U.S. at 247–49).
Related to Plaintiffs’ Motion, TVA has filed a Request for Judicial Notice (Doc. No. 136)
asking the Court to take notice of documentation related to TVA’s NPDES permit for another
facility in New Johnsonville, Tennessee. TVA had cited the terms of the New Johnsonville permit
as a point of comparison in its argument that Plaintiffs are not entitled to summary judgment.
Although the Court is not considering the New Johnsonville plant, and the Court is skeptical of
how selective citation to one other NPDES permit will illuminate its consideration of the Gallatin
Plant, the Request for Judicial Notice will be granted insofar as the cited materials are relevant to
the consideration of the Motion.
B. Alleged Per Se Violations
Plaintiffs argue that they are entitled to summary judgment on several counts because the
groundwater discharges and seeps they have identified represent per se violations of the Clean
Water Act actionable under 33 U.S.C. § 1311(a). A party seeking to establish a Clean Water Act
violation generally must establish “five elements . . . : (1) a pollutant must be (2) added (3) to
navigable waters (4) from (5) a point source.” Nat’l Wildlife Fed’n v. Consumers Power Co., 862
F.2d 580, 583 (6th Cir. 1988) (emphasis omitted). Recovery in this particular case, however,
presents a few additional hurdles. First, as the Court has explained, the pending State Enforcement
Action prevents the Court from exercising its jurisdiction with regard to some of Plaintiffs’
40
allegations. The Court must limit its consideration to issues left out of the State’s complaint,
specifically: discharges from the Non-Registered Site into the Cumberland River; and discharges
from the Ash Pond Complex that involve hydrologic flows other than those that can be
characterized as seeps alone. Open factual issues exist with regard to the extent of the discharges
that fall within these two circumscribed categories. Moreover, TVA has demonstrated that some
seeps were contemplated by TDEC at the time of the reissuance of the NPDES Permit in 2012.
Therefore, although TVA is not entitled to a blanket judgment on the pleadings under the permit
shield defense, there are outstanding issues of fact with regard to that defense that would preclude
summary judgment in Plaintiffs’ favor. TVA is entitled to an opportunity to demonstrate that the
discharges on which Plaintiffs rely were of the type disclosed to and reasonably contemplated by
TDEC at the time the NPDES Permit was under consideration.
Because Plaintiffs filed their Motion for Partial Summary Judgment before the Court had
ruled on TVA’s Motion to Dismiss for Failure to State a Claim (Doc. No. 12) or its Motion for
Judgment on the Pleadings as to All of Plaintiffs’ Claims Regarding Seeps (Doc. No. 51), Plaintiffs
have understandably failed to address these factors in their motion. Even if the Plaintiffs’ had had
such an opportunity, however, it appears likely to the Court that open questions about the extent
of TVA’s defenses would likely preclude the Court from granting summary judgment. In any
event, Plaintiffs’ Motion will be denied, and it is the hope of the Court that the parties will be able
to sharpen the focus of this litigation in light of the issues raised in this Memorandum at the
forthcoming status conference.
IV. CONCLUSION
For the foregoing reasons, TVA’s Motion to Dismiss for Failure to State a Claim (Doc.
No. 12) will be GRANTED in part and DENIED in part; TVA’s Motion to Dismiss Plaintiffs’
41
Claim for Civil Penalties and Jury Demand (Doc. No. 28) will be DENIED as to civil penalties
and GRANTED as to Plaintiffs’ jury demand, and the Court will STRIKE Plaintiffs’ demand for
a jury; TVA’s Motion for Judgment on the Pleadings as to All Plaintiffs’ Claims Regarding Seeps
(Doc. No. 51) will be DENIED; TVA’s Motion for Summary Judgment on Plaintiffs’ Claim B
(Doc. No. 57) will be DENIED AS MOOT; TVA’s Motion for Judgment on the Pleadings as to
Plaintiffs’ Claim E (Doc. No. 102) will be GRANTED as to Claim E.a and DENIED as to all
other claims; TVA’s Request for Judicial Notice (Doc. No. 136) will be GRANTED; and
Plaintiffs’ Motion for Partial Summary Judgment (Doc. No. 106) will be DENIED. Plaintiffs’
Claims B and E.a will be DISMISSED. Claims A, C, D, E.b, E.c, E.d, and E.e will be
DISMISSED except insofar as they deal with one or both of the following: discharges from the
Non-Registered Site into the Cumberland River; and discharges from the Ash Pond Complex via
hydrologic flows that are not seeps alone.
An appropriate order will issue.
____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
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