Tenn. Clean Water Network v. Tenn. Valley Auth. , 913 F.3d 592 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0006p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TENNESSEE CLEAN WATER NETWORK; TENNESSEE ┐
SCENIC RIVERS ASSOCIATION, │
Plaintiffs-Appellees, │
> No. 17-6155
│
v. │
│
│
TENNESSEE VALLEY AUTHORITY, │
Defendant - Appellant. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:15-cv-00424—Waverly D. Crenshaw Jr., District Judge.
Decided and Filed: January 17, 2019
Before: SUHRHEINRICH, CLAY, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC: Frank S. Holleman, III, Nicholas S. Torrey,
Leslie Griffith, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North
Carolina, Amanda Garcia, Anne E. Passino, SOUTHERN ENVIRONMENTAL LAW CENTER,
Nashville, Tennessee, Michael S. Kelley, Briton S. Collins, KENNERLY, MONTGOMERY &
FINLEY, P.C., Knoxville, Tennessee, for Appellees. ON RESPONSE IN OPPOSITION:
David D. Ayliffe, James S. Chase, F. Regina Koho, Lane E. McCarty, TENNESSEE VALLEY
AUTHORITY, Knoxville, Tennessee, for Appellant.
STRANCH, J. (pp. 3–6), delivered a separate dissenting opinion in which COLE, C.J.,
and MOORE, CLAY, WHITE, and DONALD, JJ., joined. A copy of Judge Clay’s dissent to the
court’s opinion of September 24, 2018 is appended, (app. 1–11).
No. 17-6155 Tenn. Clean Water Network, et al. v. TVA Page 2
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ORDER
_________________
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision. The petition then was circulated to the full court.
Less than a majority of the judges voted in favor of rehearing en banc.
Therefore, the petition is denied.
Judge Clay would grant rehearing for the reasons stated in his dissent.
No. 17-6155 Tenn. Clean Water Network, et al. v. TVA Page 3
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DISSENT
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JANE B. STRANCH, Circuit Judge, dissenting from the denial of rehearing en banc. In
seeking to harmonize the Clean Water Act (CWA) and the Resource Conservation and Recovery
Act (RCRA), the majority opinion in this case takes up an issue of exceptional importance. Its
holding that the CWA does not apply to discharges of pollutants from coal ash ponds that reach
surface waters after traveling through groundwater (1) relies on a single preposition that is not
found in the CWA provision at issue and (2) is at odds with every other circuit and our own
precedent. I therefore respectfully dissent from the denial of en banc review.
The district court concluded its 123-page opinion by explaining that, with the benefit of
hindsight and decades of data, “it is difficult to imagine why anyone would choose to build an
unlined [coal] ash waste pond in karst terrain immediately adjacent to a river.” (R. 258, PageID
10,542) TVA does not contest the district court’s factual finding that pollutants from these ash
ponds reached a navigable river. Nor could it. TVA’s expert “conceded that there is coal ash in
the Cumberland River in the area surrounding the Gallatin Plant, as shown by TVA’s own
testing.” (Id., PageID 10,486) The danger of coal ash to riverine environments and to the
communities that depend on that river is indisputable—and, indeed, the majority does not
attempt to dispute it. See Tenn. Clean Water Network v. TVA, 905 F.3d 436, 447 (6th Cir. 2018).
We need not look far to find a vivid example of how that danger affects Tennesseans.
Just last month, an East Tennessee jury returned a verdict against Defendant TVA in a suit
brought by the workers who cleaned up a 2008 coal ash spill. See Adkisson v. Jacobs Eng’g
Grp., Inc., No. 3:13-CV-00505, D.E. 408 (E.D. Tenn.). Media coverage of the case stated that
30 of the workers are dead and more than 250 are sick or dying.1 And the problems did not end
with the cleanup. Recent journalism reports that coal ash storage facilities established in the
1See Jamie Satterfield, Jury: Jacobs Engineering Endangered Kingston Disaster Clean-up Workers,
Knoxville News Sentinel (Nov. 7, 2018, 12:02 PM), https://www knoxnews.com/story/news/crime/2018/11/07/verdi
ct-reached-favor-sickened-workers-coal-ash-cleanup-lawsuit/1917514002/.
No. 17-6155 Tenn. Clean Water Network, et al. v. TVA Page 4
wake of that disaster are already leaking arsenic and radium into groundwater and that the EPA
has found a spike in coal ash constituents in groundwater test wells.2
This environmental issue reaches beyond Tennessee’s problem with TVA’s coal ash
ponds. Many other types of installations pollute navigable waters via discharges to groundwater.
See, e.g., Upstate Forever v. Kinder Morgan Energy Partners, LP, 887 F.3d 637, 643–44 (4th
Cir. 2018) (describing 369,000 gallons of gasoline spilled from an underground pipeline that
leaked through groundwater into creeks, lakes, and a river). The majority opinion, in seeking to
harmonize the CWA and RCRA, has deprived regulators and affected citizens of a critical tool—
in some circumstances, the only tool—to combat those various types of seeping pollution.
That result is not mandated by statutory text. The only support the majority opinion finds
in the text of the CWA is the word “into.” Tenn. Clean Water Network, 905 F.3d at 444. I agree
with the dissent that it is dubious that Congress hid such a sizable loophole in a preposition—
especially in a preposition that is not even found in the portion of the statute at issue in this case.
Id. at 450–51 (Clay, J., dissenting). And even if we assume that the meaning of the word “into”
is the critical inquiry, the definitions cited by the majority require only entry, not “direct” entry.
See Rapanos v. United States, 547 U.S. 715, 743 (2006) (plurality) (Scalia, J.) (“The Act does
not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but
rather the ‘addition of any pollutant to navigable waters.’” (citations omitted)). Pollutants are
discharged from coal ash ponds into navigable waters just as a rocket is launched from the
ground into space or a path leads from a city into a forest—inevitably, but not immediately.
The majority opinion’s only other rationale is that “allowing the CWA to cover pollution
of this sort would disrupt the existing regulatory framework” under RCRA. Tenn. Clean Water
Network, 905 F.3d at 445. But we have answered that claim before and clarified how the CWA
(which governs water pollution) and RCRA (which governs disposal of solid and hazardous
waste) interact. When a polluting factory operator claimed that the hazardous waste dumped into
a lagoon was exempt from RCRA because the lagoon was governed by the CWA, we explained
2See Jamie Satterfield, Testing Reveals Groundwater Contamination Threat from TVA’s Kingston Coal Ash
Landfill, Knoxville News Sentinel (Dec. 13, 2018, 5:00 AM), https://www knoxnews.com/story/news/crime/2018/12/
13/kingston-coal-ash-landfill-roane-county-groundwater-testing/2283487002/.
No. 17-6155 Tenn. Clean Water Network, et al. v. TVA Page 5
that “only the actual discharges from a holding pond or similar feature into surface waters . . . are
governed by the Clean Water Act, not the contents of the pond or discharges into it.” United
States v. Dean, 969 F.2d 187, 194 (6th Cir. 1992). So too with coal ash ponds. “Actual
discharges” from the ponds to surface waters are governed by the CWA, and everything else—
from the strength of the embankment surrounding a pond to the frequency of its inspections and
the design of its liner—is governed by RCRA. This reading acknowledges the realistic
interaction between the two Acts, and their sensible enforcement relationship. It does not
“effectively nullify” RCRA’s implementing regulations.3 Tenn. Clean Water Network, 905 F.3d
at 446 (citation omitted).
The majority’s interpretation, on the other hand, could effectively nullify RCRA. The
majority reasons that, if a coal ash pond received a CWA permit, it would be removed from
RCRA’s coverage. Id. By this logic, if a landfill has a system for collecting rainwater and
discharging it into a river, governed by the CWA pursuant to 40 C.F.R. Part 445, the rest of the
landfill’s operations would be exempt from RCRA. Likewise, if TVA’s own power plants have
CWA permits pursuant to 40 C.F.R. Part 423, the plants’ other operations would be exempt from
RCRA—including, presumably, its rules about disposal of coal ash. But that is indisputably not
the case.
In light of my disagreement with the two bases of the majority’s decision, I do not think
splitting from every other circuit that has considered this issue is warranted. See Upstate
Forever, 887 F.3d at 650 (“[A] point source is the starting point or cause of a discharge under the
CWA, but that starting point need not also convey the discharge directly to navigable waters.”);
Haw. Wildlife Fund v. County of Maui, 886 F.3d 737, 746 (9th Cir. 2018) (“This case is no
different—the effluent comes ‘from’ the four wells and travels ‘through’ them before entering
navigable waters. It just also travels through groundwater before entering the Pacific Ocean.”
(citation omitted)); see also Waterkeeper All., Inc. v. EPA, 399 F.3d 486, 510–11 (2d Cir. 2005)
3Indeed, the Environmental Protection Agency proposed the Coal Combustion Residuals (CCR) Rule
pursuant to RCRA while acknowledging that the CWA governs discharges from coal ash ponds to surface waters.
See Hazardous and Solid Waste Management System, 75 Fed. Reg. 35,128, 35,142 (June 21, 2010) (“The discharge
of pollutants from CCR management units to waters of the United States are regulated under the National Pollutant
Discharge Elimination System (NPDES) at 40 CFR Part 122, authorized by the Clean Water Act (CWA).”).
No. 17-6155 Tenn. Clean Water Network, et al. v. TVA Page 6
(holding manure spread across fields is a point source); Sierra Club v. Abston Constr. Co.,
620 F.2d 41, 45 (5th Cir. 1980) (holding “gravity flow” from miners’ spoil piles is a point
source).4
Though I appreciate the majority’s acknowledgement of the importance of identifying
some path to a remedy, I do not think it is accurate to conclude that “other environmental laws
have been enacted to remedy” pollution that seeps from coal ash ponds into surface waters.
Tenn. Clean Water Network, 905 F.3d at 447. I doubt the feasibility of using a statute designed
to govern solid waste to regulate pollution of rivers. I am even less confident that existing
environmental law can fill the new loopholes created now that a polluter can escape liability
under the CWA “by moving its drainage pipes a few feet from the river bank.” Id. (Clay, J.,
dissenting). For these reasons and those articulated more fully in Judge Clay’s dissenting
opinion, I respectfully dissent from the denial of rehearing en banc.
ENTERED BY ORDER OF THE COURT
__________________________________
Deborah S. Hunt, Clerk
4Neither of the cases TVA now cites as showing a circuit split stands for the proposition at issue here—that
identifiable, measurable pollution that reaches surface waters after traveling through groundwater is not covered
under the CWA. Village of Oconomowoc Lake v. Dayton Hudson Corp. holds only that the CWA does not “assert[]
authority over ground waters, just because these may be hydrologically connected with surface waters.” 24 F.3d
962, 965 (7th Cir. 1994). There is no dispute that groundwater is outside the scope of the CWA; the issue is whether
pollution of surface water is excused because the pollutants first traveled through groundwater. Rice v. Harken
Exploration Co. interprets the Oil Pollution Act of 1990 (OPA), not the CWA. 250 F.3d 264, 266–67 (5th Cir.
2001). Even assuming the case is relevant, Rice holds only that, when “nothing in the record . . . could convince a
reasonable trier of fact that either Big Creek or any of the unnamed other intermittent creeks on the ranch are
sufficiently linked to an open body of navigable water as to qualify for protection under the OPA,” then “a
generalized assertion that covered surface waters will eventually be affected by remote, gradual, natural seepage
from the contaminated groundwater is insufficient to establish liability under the OPA.” Id. at 271–72. In this case,
plaintiffs do not rely on a “generalized assertion,” but rather on a substantial body of evidence—including, as
described above, the concession of TVA’s expert—showing pollutants from coal ash ponds entered a navigable
river.
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 1
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APPENDIX
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CLAY, Circuit Judge, dissenting. Can a polluter escape liability under the Clean Water
Act (“CWA”), 33 U.S.C. §§ 1251–1387, by moving its drainage pipes a few feet from the
riverbank? The Fourth and Ninth Circuits have said no. In two cases today,1 the majority says
yes. Because the majority’s conclusion is contrary to the plain text and history of the CWA, and
because I disagree with the majority’s analysis of the permit’s Sanitary Sewer Overflow provision,
I respectfully dissent from the majority’s position as to these issues.
I. Scope of the Clean Water Act
Plaintiffs have invoked the CWA’s citizen-suit provision, which provides that “any citizen
may commence a civil action . . . against any person . . . who is alleged to be in violation of . . . an
effluent standard or limitation under this chapter[.]” 33 U.S.C. § 1365(a). “For purposes of this
section, the term ‘effluent standard or limitation under this chapter’ means,” among other
possibilities, “an unlawful act under subsection (a) of section 1311 of this title.” § 1365(f). In
turn, § 1311(a) prohibits “the discharge of any pollutant by any person[.]”
The broad sweep of a defendant’s potential CWA liability is limited in two ways. First,
Congress included a list of exceptions in § 1311(a) itself: the discharge of a pollutant is unlawful
“[e]xcept in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of
this title.” Second, Congress gave the phrase “discharge of a pollutant” a very specific definition:
it means “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C.
§ 1362(12)(A). Taken together, Congress thus authorized citizen suits to prevent the “addition of
any pollutant to navigable waters from any point source,” see § 1362(12)(A), but if a listed
statutory exception applies, see § 1311(a).
The majority argues that this standard cannot be satisfied when, as here, pollution travels
briefly through groundwater before reaching a navigable water. Plaintiffs counter that such an
1The other case is Case No. 18-5115, Kentucky Waterways Alliance, et al. v. Kentucky Utilities Co.
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 2
exception has no statutory basis and would allow polluters to shirk their CWA obligations by
placing their underground drainage pipes a few feet away from the shoreline. This case could have
profound implications for those in this Circuit who would pollute our Nation’s waters. And the
issue is novel. This Court has never before considered whether the CWA applies in this context.
However, the Fourth and Ninth Circuits have. Both courts determined that a short journey
through groundwater does not defeat CWA liability. See Upstate Forever v. Kinder Morgan
Energy Partners, L.P., 887 F.3d 637, 649–51 (4th Cir. 2018); Hawai’i Wildlife Fund v. Cty. of
Maui, 886 F.3d 737, 745–49 (9th Cir. 2018). The Second Circuit reached a similar conclusion
where the pollutants traveled briefly through fields (which are not necessarily point sources) and
through the air. See Concerned Area Residents for Env’t v. Southview Farm, 34 F.3d 114, 118–
19 (2d Cir. 1994) (fields); Peconic Baykeeper, Inc. v. Suffolk Cty., 600 F.3d 180, 188–89 (2d Cir.
2010) (air). Until today, no Circuit had come out the other way. The reason is simple: the CWA
does not require a plaintiff to show that a defendant discharged a pollutant from a point source
directly into navigable waters; a plaintiff must simply show that the defendant “add[ed] . . . any
pollutant to navigable waters from any point source.” See §§ 1362(12)(A) (emphases added),
1365(a), 1311(a); Upstate Forever, 887 F.3d at 650; Hawai’i Wildlife Fund, 886 F.3d at 749.
The Supreme Court addressed this precise issue in Rapanos v. United States, 547 U.S. 715
(2006). There, Justice Scalia’s plurality opinion was explicit:
The Act does not forbid the “addition of any pollutant directly to navigable waters
from any point source,” but rather the “addition of any pollutant to navigable
waters.” [33 U.S.C.] § 1362(12)(A) (emphasis added); § 1311(a). Thus, from the
time of the CWA’s enactment, lower courts have held that the discharge into
intermittent channels of any pollutant that naturally washes downstream likely
violates § 1311(a), even if the pollutants discharged from a point source do not emit
“directly into” covered waters, but pass “through conveyances” in between. United
States v. Velsicol Chemical Corp., 438 F. Supp. 945, 946–947 (W.D.Tenn. 1976)
(a municipal sewer system separated the “point source” and covered navigable
waters). See also Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1137,
1141 (C.A.10 2005) (2.5 miles of tunnel separated the “point source” and
“navigable waters”).
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 3
Id. at 743 (plurality opinion) (emphasis in original). True, Justice Scalia’s plurality opinion is not
binding. But no Justice challenged this aspect of the opinion, and for good reason: the statutory
text unambiguously supports it.
Further, applying the CWA to point-source pollution traveling briefly through groundwater
before reaching a navigable water promotes the CWA’s primary purpose, which is to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). By contrast, the majority’s approach defeats the CWA’s purpose by opening a gaping
regulatory loophole: polluters can avoid CWA liability by discharging their pollutants into
groundwater, even if that groundwater flows immediately into a nearby navigable water. This
exception has no textual or logical foundation. As one district court observed,
it would hardly make sense for the CWA to encompass a polluter who discharges
pollutants via a pipe running from the factory directly to the riverbank, but not a
polluter who dumps the same pollutants into a man-made settling basin some
distance short of the river and then allows the pollutants to seep into the river via
the groundwater.
See N. Cal. River Watch v. Mercer Fraser Co., No. C-04-4620 SC, 2005 WL 2122052, at *2 (N.D.
Cal. Sept. 1, 2005). In addition, this exception has no apparent limits. Based on the majority’s
logic, polluters are free to add pollutants to navigable waters so long as the pollutants travel
through any kind of intermediate medium—for example through groundwater, across fields, or
through the air. This would seem to give polluters free rein to discharge pollutants from a sprinkler
system suspended above Lake Michigan. After all, pollutants launched from such a sprinkler
system would travel “in all directions, guided only by the general pull of gravity.” Kentucky
Waterways Alliance, 18-5115 at 11. According to the majority, this would defeat CWA liability.2
2The majority declines to reverse the district court’s other finding that a coal ash pond is a point source under
the CWA, but suggests disagreement in a footnote. The CWA defines “point source” as “any discernible, confined
and discrete conveyance,” including “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be
discharged.” 33 U.S.C. § 1362(14). The majority cites a recent Fourth Circuit case, Sierra Club v. Va. Elec. & Power
Co., No. 17-1952, --- F.3d ---, 2018 WL 4343513 (4th Cir. Sept. 12, 2018), which held that a coal ash pond is not a
point source because it was a “static recipient[] of the precipitation and groundwater that flowed through [it].” 2018
WL 4343513 at *6. Looking at the text of the CWA, however, shows that, inter alia, “ditch[es], well[s], container[s],”
and “vessel[s]” are included in the definition. 33 U.S.C. § 1362(14). The canon of ejusdem generis states that “the
general term must take its meaning from the specific terms with which it appears.” Retail Ventures, Inc. v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 691 F.3d 821, 833 (6th Cir. 2012). The common denominator between wells,
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 4
I have a very different view. In cases where, as here, a plaintiff alleges that a defendant is
polluting navigable waters through a complex pathway, the court should require the plaintiff to
prove the existence of pollutants in the navigable waters and to persuade the factfinder that the
defendant’s point source is to blame—that the defendant is unlawfully “add[ing] . . . any pollutant
to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). The more complex the
pathway, the more difficult the proof. Where these cases are plausibly pleaded, they should be
decided on the facts.
Instead, the majority holds that a plaintiff may never—as a matter of law—prove that a
defendant has unlawfully added pollutants to navigable waterways via groundwater. For its textual
argument, the majority refers us to the term “effluent limitations.” This term, the majority says, is
defined as “restrictions on the amount of pollutants that may be ‘discharged from point sources
into navigable waters.’” Maj. Op. at 11 (quoting with emphasis 3 U.S.C. § 1362(11)). Seizing on
the word “into”—which denotes “entry, introduction, insertion”—the majority concludes that the
effluent-limitation definition implicitly creates an element of “directness.” In other words, the
majority reasons, “for a point source to discharge into navigable waters, it must dump directly into
those navigable waters[.]” Id. (emphasis in original).
containers, ditches, and vessels is that each is a man-made, defined area where liquid collects. The canon of ejusdem
generis thus suggests that man-made coal ash ponds are included in this definition. The Fourth Circuit instead cites a
dictionary definition of “conveyance” as “a facility—for the movement of something from one place to another”
without explaining how items like wells, containers, and vessels fit this definition. Va. Elec. & Power Co., 2018 WL
4343513, at *5 (quoting Webster’s Third New International Dictionary 499 (1961)). The Fourth Circuit suggests that
a container can be a point source only if it is in the act of conveying something, 2018 WL 4343513, at *7, ignoring
that the statutory definition includes “any … container … from which pollutants are or may be discharged.” 33
U.S.C. § 1362(14) (emphasis added).
The Fourth Circuit’s approach is further misguided in that it conflicts with the broad interpretation that federal
courts have traditionally given to the phrase “point source.” See, e.g., Simsbury-Avon Pres. Club, Inc. v. Metacon
Gun Club, Inc., 575 F.3d 199, 219 (2d Cir. 2009) (quoting Dague v. City of Burlington, 935 F.2d 1343, 1354–55 (2d
Cir. 1991), rev’d on other grounds, 505 U.S. 557 (1992)) (“[T]he definition of a point source is to be broadly
interpreted.”); Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 955 (9th Cir. 2002)
(quoting Dague, 935 F.2d at 1354–55); Cmty. Ass’n for Restoration of Env’t (CARE) v. Sid Koopman Dairy, 54 F.
Supp. 2d 976, 980 (E.D. Wash. 1999) (citing Dague, 935 F.2d at 1354–55); Yadkin Riverkeeper, Inc. v. Duke Energy
Carolinas, LLC, 141 F. Supp. 3d 428, 444 (M.D. N.C. 2015) (quoting Dague, 935 F.2d at 1354–55); see United States
v. Earth Scis., Inc., 599 F.2d 368, 373 (10th Cir. 1979) (“[T]he concept of a point source was designed to further [the
CWA’s regulatory] scheme by embracing the broadest possible definition of any identifiable conveyance from which
pollutants might enter the waters of the United States.”). By embracing a restrictive definition of what constitutes a
point source, the Fourth Circuit jettisons these long-standing principles.
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 5
The majority is way off the rails. First of all, “Congress ‘does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say,
hide elephants in mouseholes.’” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626–27 (2018)
(quoting Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468 (2001)). The majority should
heed this commonsense advice. Congress did not hide a massive regulatory loophole in its use of
the word “into.”
But more importantly, the majority’s quoted definition of “effluent limitation” from
§ 1362(11)—the supposed origin of the loophole—is not relevant to this case. The citizen-suit
provision uses the term “effluent standard or limitation”—not the term “effluent limitation.” See
33 U.S.C. § 1365(f). As the majority itself argues, minor distinctions in statutory language
sometimes matter. This one does. The phrase “effluent standard or limitation” is a term of art and
is wholly distinct from the term “effluent limitation.” This conclusion is supported not by tea
leaves or a carefully selected dictionary, but rather by the CWA itself. The citizen-suit provision
of the CWA provides that “effluent standard or limitation” means, among other things, “an
unlawful act under subsection (a) of section 1311 of this title.” 33 U.S.C. § 1365(a). Turning to
§ 1311(a), we find that, absent certain exceptions, “the discharge of any pollutant by any person
shall be unlawful,” § 1311(a), and the “discharge of a pollutant” means “any addition of any
pollutant to navigable waters from any point source,” § 1362(12)(A) (emphasis added). Thus,
even assuming the majority correctly parses the definition of “into”—a dubious proposition at
best—the word “into” is not contained in any of the statutory provisions at issue. Rather, we find
the word “to,” which does not even arguably suggest a requirement of directness; the word “to”
merely “indicate[s] movement or an action or condition suggestive of movement toward a place,
person, or thing reached.” To, Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/to.
It is therefore entirely unclear why the majority relies on the definition of “effluent
limitation.” That definition is simply irrelevant to this lawsuit. As a result, the majority’s
criticisms of the approach taken by the Fourth and Ninth Circuits miss the mark. Indeed, the
Fourth Circuit analyzed the correct statutory text when it rejected the argument that the citizen-
suit provision requires directness:
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 6
[t]he plain language of the CWA requires only that a discharge come “from” a
“point source.” See 33 U.S.C. § 1362(12)(A). Just as the CWA’s definition of a
discharge of a pollutant does not require a discharge directly to navigable waters,
Rapanos, 547 U.S. at 743, 126 S. Ct. 2208, neither does the Act require a discharge
directly from a point source, see 33 U.S.C. § 1362(12)(A). The word “from”
indicates “a starting point: as (1) a point or place where an actual physical
movement . . . has its beginning.” Webster’s Third New International Dictionary
913 (Philip Babcock Gove et al. eds., 2002) (emphasis added); see also The
American Heritage Dictionary of the English Language 729 (3d ed. 1992) (noting
“from” indicates a “starting point” or “cause”). Under this plain meaning, a point
source is the starting point or cause of a discharge under the CWA, but that starting
point need not also convey the discharge directly to navigable waters.
Upstate Forever, 887 F.3d at 650 (footnote omitted). In short, if the majority would like to add a
“directness” requirement to § 1311, it must fight the statutory text to get there.
In addition, the majority fails to meaningfully distinguish Justice Scalia’s concurrence in
Rapanos, which made clear that the CWA applies to indirect pollution. It is true that Rapanos
dealt with different facts. But it is irrelevant that the pollution in Rapanos traveled through point
sources before reaching a navigable water, whereas the pollution in this case traveled through
groundwater, which, according to the majority, is not a point source. In both cases, the legal issue
is the same: whether the CWA applies to pollution that travels from a point source to navigable
waters through a complex pathway. See Rapanos, 547 U.S. at 745 (asking whether “the
contaminant-laden waters ultimately reach covered waters”). Indeed, Justice Scalia favorably
cited the Second Circuit’s discussion in Concerned Area Residents for the Environment. Rapanos,
547 U.S. at 744. In that case, pollutants traveled across fields—which “were not necessarily point
sources themselves”—before reaching navigable waters. Hawai’i Wildlife Fund, 886 F.3d at 748.
Given the Supreme Court plurality’s endorsement of the Second Circuit’s approach, the majority’s
attempt to distinguish Rapanos collapses.
Next, the majority warns that imposing liability would upset the cooperative federalism
embodied by the CWA. On this view, the states alone are responsible for regulating pollution of
groundwater, even if that pollution later travels to a navigable water. Wrong again. To be sure,
the CWA recognizes the “primary responsibilities and rights of States” to regulate groundwater
pollution. 33 U.S.C. § 1251(b). But imposing liability in this case would not marginalize the
states. To the contrary, the district court made clear that it was not regulating the pollution of
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 7
groundwater itself. See Tennessee Clean Water Network, 273 F. Supp. 3d at 826 (“The Court
agrees with those courts that view the issue not as whether the CWA regulates the discharge of
pollutants into groundwater itself but rather whether the CWA regulates the discharge of pollutants
to navigable waters via groundwater.” (quotation marks, alteration, and citation omitted)). Instead,
the district court was addressing pollution of a navigable water—specifically, the Cumberland
River—via groundwater. This distinction was clear to the Fourth and Ninth Circuits. See Upstate
Forever, 887 F.3d at 652 (“We do not hold that the CWA covers discharges to ground water itself.
Instead, we hold only that an alleged discharge of pollutants, reaching navigable waters . . . by
means of ground water with a direct hydrological connection to such navigable waters, falls within
the scope of the CWA.”); Hawai’i Wildlife Fund, 886 F.3d at 749 (“[T]he County’s concessions
conclusively establish that pollutants discharged from all four wells emerged at discrete points in
the Pacific Ocean . . . . We leave for another day the task of determining when, if ever, the
connection between a point source and a navigable water is too tenuous to support liability under
the CWA.”). Accordingly, imposing liability in this case fits perfectly with the CWA’s stated
purpose: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters.” 33 U.S.C. § 1251(a).
Finally, the majority offers a narrow reading of the CWA because, in its view, a more
inclusive reading would render “virtually useless” the Coal Combustion Residuals (“CCR”) Rule
under the Resource Conservation and Recovery Act (“RCRA”). Maj. Op. at 13. The majority
notes that if a polluter’s conduct is regulated through a CWA permit, then RCRA does not also
apply. The majority therefore suggests that a straightforward reading of the CWA is incompatible
with RCRA. The majority would gut the former statute to save the latter.
But the EPA has already dismissed the majority’s concern. Indeed, the EPA issued federal
regulations on this issue many decades ago. The EPA’s interpretation is that the industrial
discharge of waste such as CCR is subject to regulation under both RCRA and the CWA: RCRA
regulates the way polluters store CCR, and the CWA kicks in the moment CCR enters a navigable
waterway. See 40 C.F.R. § 261.4(a)(2). The EPA first articulated this approach in a set of
regulations from 1980, which provide that “[i]ndustrial wastewater discharges that are point source
discharges subject to regulation under section 402 of the Clean Water Act” “are not solid wastes
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 8
for the purpose of” the RCRA exclusion. 40 C.F.R. § 261.4(a)(2). This exclusion, the regulation
explains, “applies only to the actual point source discharge. It does not exclude industrial
wastewaters while they are being collected, stored or treated before discharge, nor does it exclude
sludges that are generated by industrial wastewater treatment.” § 261.4(a)(2) (comment)
(emphasis added). Thus, under the EPA’s reading, a polluter can be liable under RCRA for
improperly storing CCR—even if the CCR never enters a navigable waterway. See id.
Conversely, a polluter can be liable under the CWA for adding CCR to a navigable waterway—
even if the polluter’s storage methods comport with RCRA. See id. And of course, a polluter can
be liable under both statutes if the polluter both improperly stores CCR and discharges it to a
navigable waterway. See id.
The EPA settled any doubts on this matter by publishing a detailed description of its
rationale in the Federal Register. See 45 Fed. Reg. 33098. The EPA explained that 40 C.F.R.
§ 261.4(a)(2) reflects the EPA’s interpretation that regulation of a polluter’s discharge of industrial
waste to a navigable waterway pursuant to the CWA does not trigger the 42 U.S.C. § 6903(27)
exclusion and therefore does not exempt that polluter’s storage of CCR from regulation under
RCRA:
The obvious purpose of the industrial point source discharge exclusion in Section
1004(27) was to avoid duplicative regulation of point source discharges under
RCRA and the Clean Water Act. Without such a provision, the discharge of
wastewater into navigable waters would be “disposal” of solid waste, and
potentially subject to regulation under both the Clean Water Act and Subtitle C [of
RCRA]. These considerations do not apply to industrial wastewaters prior to
discharge since most of the environmental hazards posed by wastewaters in
treatment and holding facilities—primarily groundwater contamination—cannot be
controlled under the Clean Water Act or other EPA statutes.
Had Congress intended to exempt industrial wastewaters in storage and treatment
facilities from all RCRA requirements, it seems unlikely that the House Report on
RCRA would have cited, as justification for the development of a national
hazardous waste management program, numerous damage incidents which appear
to have involved leakage or overflow from industrial wastewater impoundments.
See, e.g., H.R. Rep. at 21. Nor would Congress have used the term “discharge” in
Section 1004(27). This is a term of art under the Clean Water Act (Section 504(12))
and refers only to the “addition of any pollutant to navigable waters”, not to
industrial wastewaters prior to and during treatment.
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Since the comment period closed on EPA’s regulations, both Houses of Congress
have passed amendments to RCRA which are designed to provide EPA with more
flexibility under Subtitle C in setting standards for and issuing permits to existing
facilities which treat or store hazardous wastewater. See Section 3(a)(2) of H.R.
3994 and Section 7 of S.1156. See also S. Rep. No. 96-173, 96th Cong., 1st Sess.
3 (1979); Cong. Rec. S6819, June 4, 1979 (daily ed.); Cong. Rec. H1094–1096,
February 20, 1980 (daily ed.). These proposed amendments and the accompanying
legislative history should lay to rest any question of whether Congress intended
industrial wastewaters in holding or treatment facilities to be regulated as “solid
waste” under RCRA.
45 Fed. Reg. 33098. Congress ratified the EPA’s interpretation when it enacted amendments to
RCRA, which the EPA said would “lay to rest” any concerns about whether industrial wastes like
CCR are subject to regulation under both RCRA (in terms of their storage and treatment) and the
CWA (in terms of their discharge to navigable waters). Id.; see Public Law 96-482. From this
history, and from the text of the statutes, we can surmise that Congress intended to delegate to the
EPA the power “to speak with the force of law” on this aspect of the interplay between RCRA and
the CWA. See United States v. Mead Corp., 533 U.S. 218, 229 (2001). Exercising this authority,
the EPA reached an interpretation that is different from—and incompatible with—that of the
majority.
Contravening bedrock principles of administrative law, the majority bulldozes the EPA’s
interpretation of its own statutory authority without even discussing the possibility of deference.
But “[w]e have long recognized that considerable weight should be accorded to an executive
department’s construction of a statutory scheme it is entrusted to administer, and the principle of
deference to administrative interpretations.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 844 (1984).
In Chevron, this Court held that ambiguities in statutes within an agency’s
jurisdiction to administer are delegations of authority to the agency to fill the
statutory gap in reasonable fashion. Filling these gaps, the Court explained,
involves difficult policy choices that agencies are better equipped to make than
courts. 467 U.S., at 865–866, 104 S. Ct. 2778. If a statute is ambiguous, and if the
implementing agency’s construction is reasonable, Chevron requires a federal court
to accept the agency’s construction of the statute, even if the agency’s reading
differs from what the court believes is the best statutory interpretation.
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Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005). The EPA
says that imposing CWA liability for the discharge of CCR to navigable waterways does not
eliminate the possibility of RCRA liability for the storage and treatment of CCR. The majority
suggests the exact opposite. Unfortunately for the majority, but fortunately for those who enjoy
clean water, the majority lacks the authority to override longstanding EPA regulations on a whim.
See id.
For all these reasons, I believe the CWA clearly applies to the pollution in this case.
Accordingly, I would join our sister circuits in holding that the CWA prohibits all pollution that
reaches navigable waters “by means of ground water with a direct hydrological connection to such
navigable waters[.]” Upstate Forever, 887 F.3d at 652; see Hawai’i Wildlife Fund, 886 F.3d at
745–49. Under this standard, the unpermitted leaks from NRS and Complex are clearly unlawful.
II. The Permit’s Sanitary Sewer Overflow Provision
The permit prohibits “Sanitary Sewer Overflows,” which it defines as “the discharge to
land or water of wastes from any portion of the collection, transmission, or treatment system other
than through permitted outfalls.” (R. 1-2, permit, PageID# 79.) The district court found, and TVA
no longer disputes, that the Complex discharges coal ash waste to groundwater through its unlined,
leaking sides and bottoms. These discharges are not authorized by the permit. Therefore, Plaintiffs
have proven a permit violation.
The majority avoids this result by overcomplicating the issue. Ignoring the plain text of
the permit, the majority instead champions the EPA’s standard definition of “Sanitary Sewer
Overflow,” which is narrow and arguably saves TVA from liability. This reasoning is perplexing.
The EPA’s definition should play no role in the legal analysis here because the permit itself defines
“Sanitary Sewer Overflow.” Indeed, TVA’s permit expert conceded in the district court that the
permit’s definition is broader than the EPA’s definition. Accordingly, this Court should apply the
plain text of the permit’s definition, as it would apply the plain text of any contract. This Court
has no plausible authority or reason to substitute a definition provided in the permit with one
drafted in a different context by a nonparty who has no relation to this case.
No. 17-6155 Appendix to Denial of Petition for Rehearing En Banc Page 11
Further, the EPA’s standard definition makes little sense in this context. As the majority
recognizes, that definition applies only to sewage from sanitary sewer systems. But a coal ash
pond is not a “sanitary sewer system.” It does not contain “sewage.” Consequently, interpreting
the Sanitary Sewer Overflow provision to regulate sewage alone would render the provision
meaningless. This Court should avoid such an interpretation, especially when the permit itself
provides a definition that does not trigger any such concerns. See Gallo v. Moen Inc., 813 F.3d
265, 273 (6th Cir. 2016) (noting the general rule that “courts should interpret contracts to avoid
superfluous words”).
For these reasons, I would hold that the district court correctly ruled that the Complex’s
karst-related leaks violate the sanitary-sewer provision.
Conclusion
As set forth above, I believe that the CWA applies to TVA’s indirect pollution of navigable
waters and that TVA violated the permit’s Sanitary Sewer Overflow provision. Because the
majority disagrees as to both issues, I respectfully dissent.