206 F.Supp.3d 1280
M.D. Tenn.2016Background
- TVA operates the coal-fired Gallatin Plant adjacent to Old Hickory Lake and disposes of coal ash by sluicing ash-water into a series of unlined ash ponds (Ash Pond A, E, and Stilling Ponds B–D) separated from the Cumberland River by earthen dikes; an older, 73-acre Non‑Registered Site contains legacy ash.
- Plaintiffs (two conservation groups) allege ash-pond leakage, groundwater contamination, and direct discharges to the Cumberland River and to a historic stream called Sinking Creek via seeps, sinkholes, and other hydrologic connections.
- TVA holds an NPDES permit issued by Tennessee (TDEC); plaintiffs served a 60‑day notice and the State of Tennessee subsequently filed a chancery-court enforcement action against TVA; plaintiffs intervened in state court and then filed this federal citizen‑suit under the CWA.
- The state suit alleges seep-related and groundwater claims; plaintiffs’ federal complaint asserts related claims plus discrete allegations omitted from the state complaint (discharges to Sinking Creek, discharges from the Non‑Registered Site to the Cumberland, and Ash Pond discharges via non-seep hydrologic conduits).
- The Court resolved overlapping motions: it applied the CWA diligent‑prosecution bar to dismiss federal claims that overlap the state action, denied broad permit‑shield and seep-based dismissals on the pleadings, held TVA subject to suit for civil penalties under TVA’s sue‑and‑be‑sued clause, struck plaintiffs’ jury demand, and denied plaintiffs’ partial summary judgment motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of CWA diligent‑prosecution bar (33 U.S.C. §1365(b)(1)(B)) | Plaintiffs: state action is narrower and not diligently prosecuting all CWA claims; citizen suit may proceed on omitted claims | TVA: state enforcement bars the federal suit where it addresses the same standards/limitations | Court: Bar applies to overlapping claims; federal claims dismissed except those not in state complaint (Sinking Creek, Non‑Registered Site → Cumberland, and Ash Pond discharges via non‑seep conduits) |
| Colorado River abstention | Plaintiffs: federal court should hear non‑overlapped claims | TVA: federal court should abstain in favor of parallel state proceedings | Court: abstention not justified; remaining federal claims are not parallel enough to justify abstention |
| Sovereign immunity and civil penalties against TVA | Plaintiffs: TVA is a corporate instrumentality subject to suit and penalties under its sue‑and‑be‑sued clause | TVA: sovereign immunity (DOE v. Ohio) shields it from civil penalties for past violations | Court: TVA’s broad statutory sue‑and‑be‑sued waiver permits civil penalties; DOE v. Ohio does not limit that preexisting waiver here |
| Right to jury trial against TVA | Plaintiffs: instrumentality status allows jury | TVA: suits against federal agencies/entities do not carry a jury right absent explicit statutory grant | Court: Jury demand stricken; no implied jury right against TVA absent explicit statute |
| Permit‑shield defense for seeps (33 U.S.C. §1342(k)) | Plaintiffs: permit shield should not cover unpermitted seeps/outfalls or undisclosed discharges | TVA: TDEC contemplated seeps during permitting; permit shield bars seep‑based claims | Court: Permit contemplated some de minimis seeps, but shield not categorical; factual record required — denial of judgment on pleadings as to seeps |
| Challenge to NPDES treatment‑pond classification (Sinking Creek / Claim B) | Plaintiffs: Ash Ponds A & E are waters of the U.S. (Sinking Creek) and were unlawfully used as a treatment system | TVA: use of pond complex as treatment system was disclosed and reasonably contemplated in the permit | Court: Claim B is a collateral attack on the permit; dismissed under permit‑shield/permit disclosure rationale |
| Suit alleging violations of specific permit provisions (Claims E.a–E.e) | Plaintiffs: alleged noncompliance with multiple permit conditions (monitoring, operation, notice, sanitary‑sewer overflow prohibition) | TVA: many provisions inapplicable or insufficiently pled; some claims shielded | Court: Grant as to E.a (inapplicable); deny as to E.b–E.e — factual issues preclude judgment on the pleadings |
Key Cases Cited
- Arkansas v. Oklahoma, 503 U.S. 91 (1992) (CWA’s national objective and cooperative federalism framework)
- Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015) (permit‑shield two‑prong test and "reasonable contemplation" inquiry)
- Piney Run Preservation Ass'n v. Cty. Comm'rs of Carroll Cty., 268 F.3d 255 (4th Cir. 2001) (framework for permit‑shield and reasonable‑contemplation analysis)
- Jones v. City of Lakeland, Tenn., 224 F.3d 518 (6th Cir. 2000) (diligent‑prosecution context; comparability and citizen participation issues)
- Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007) (diligent‑prosecution scope and overlap analysis)
- United States Department of Energy v. Ohio, 503 U.S. 607 (1992) (federal sovereign immunity from certain civil fines under the CWA)
- Loeffler v. Frank, 486 U.S. 549 (1988) (effect of broad sue‑and‑be‑sued clauses on waivers of sovereign immunity)
- Franchise Tax Bd. of Cal. v. U.S. Postal Serv., 467 U.S. 512 (1984) (treatment of government instrumentalities with sue‑and‑be‑sued clauses)
- Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) (doctrine and standard for abstention in favor of parallel state proceedings)