KENTUCKY WATERWAYS ALLIANCE; SIERRA CLUB v. KENTUCKY UTILITIES COMPANY
No. 18-5115
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
September 24, 2018
File Name: 18a0213p.06. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: August 2, 2018. Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:17-cv-00292—Danny C. Reeves, District Judge.
SUHRHEINRICH, CLAY, and GIBBONS, Circuit Judges.
COUNSEL
ARGUED: Thomas Cmar, EARTHJUSTICE, Oak Park, Illinois, for Appellants. Paul D. Clement, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellee. ON BRIEF: Thomas Cmar, EARTHJUSTICE, Oak Park, Illinois, Benjamin Locke, EARTHJUSTICE, Philadelphia, Pennsylvania, Joe F. Childers, JOE F. CHILDERS & ASSOCIATES, Lexington, Kentucky, Matthew E. Miller, SIERRA CLUB, Washington, D.C., for Appellants. Paul D. Clement, Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., John C. Bender, DINSMORE & SHOHL LLP, Lexington, Kentucky, F. William Brownell, Eric J. Murdock, HUNTON ANDREWS KURTH LLP, Washington, D.C., Robert M. Rolfe, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, Nash E. Long, III, Brent A. Rosser, HUNTON ANDREWS KURTH LLP, Charlotte, North Carolina, J. Gregory Cornett, Robert J. Ehrler, LG&E AND KU ENERGY LLC, Louisville, Kentucky, Sheryl G. Snyder, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellee. Erin M. Palmer, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, Thomas A. Lorenzen, CROWELL & MORING LLP, Washington, D.C., for Amici Curiae.
SUHRHEINRICH, J., delivered the opinion of the court in which GIBBONS, J., joined, and CLAY, J., joined in part. CLAY, J. (pp. 20–29), delivered a separate opinion concurring in part and dissenting in part.
SUHRHEINRICH, Circuit Judge. Pollutants can find their way into bodies of water in a variety of ways. Sometimes they travel by air and settle into lakes, rivers, oceans, and the like. Sometimes pipes dump pollutants directly into those waters. In this case, we consider pollution that reaches surface waters by way of subsurface water, or groundwater.
Appellee-Defendant Kentucky Utilities Company (“KU“) burns coal to produce
With their first argument, we disagree. The CWA does not extend liability to pollution that reaches surface waters via groundwater. But RCRA does govern this conduct, and because the plaintiffs have met the statutory rigors needed to bring such a claim, the district court must hear it. We affirm in part and reverse in part.
I. BACKGROUND
A. Statutory Framework
We are tasked with interpreting two federal statutes in this case: the CWA and RCRA. As such, some background information on each statute is a helpful starting point.
CWA. Congress passed the CWA in 1972 with the stated purpose of “restor[ing] and maintain[ing] the . . . Nation‘s waters.”
Congress enacted this program as a major overhaul to the CWA‘s predecessors, the 1948 Federal Water Pollution Control Act and the Water Quality Act of 1965. Under those two statutes, liability arose when pollutants in a given body of water exceeded certain levels. Once excess pollution was detected, enforcement authorities had to trace the pollution back to its source. Trouble was, tracing those excess levels back to a particular defendant‘s actions proved all but impossible—only one prosecution was levied under that regime. See S. Rep. No. 92-414 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3672 (“The record shows an almost total lack of enforcement. Under this procedure, only one case has reached the courts in more than two decades.“). To remedy that problem, Congress changed its focus from the receiving water to the discharging source. Id. at 3675 (“Under [the CWA] the basis of pollution prevention and elimination will be the application of effluent limitations. Water quality will be a measure of program effectiveness and performance, not a means of elimination and enforcement. . . . With effluent limits, the [EPA] . . . need not search for a precise link between pollution and water quality.“).
Alongside the CWA‘s broad proscriptions, Congress also sought to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use . . . of land and water resources.”
As a means of enforcement, the CWA gives the EPA the power to issue orders and bring civil and criminal actions against those in violation of its provisions.
RCRA. Enacted four years after the CWA, RCRA is designed to “promote the protection of health and the environment and to conserve valuable material and energy resources.”
In order to meet its objectives, RCRA encourages states to develop plans to manage solid waste.
Similar to the CWA, RCRA allows the EPA and relevant state agencies to enforce the statute via civil or criminal actions.
As part of its rulemaking authority under RCRA, the EPA promulgated a formal rule in 2015 addressing disposal of coal combustion residuals from electric utilities that has been dubbed the “CCR Rule.” See 80 Fed. Reg. 21,302 (Apr. 17, 2015). The CCR Rule specifically addresses the “disposal of coal [ash] as solid waste under [RCRA].” Id. at 21,302. To that end, “[t]he rule requires any existing unlined CCR surface impoundment that is contaminating groundwater above a regulated constituent‘s groundwater protection standard to stop receiving CCR and either retrofit or close.” Id. The rule then establishes minimum criteria for coal ash surface impoundments and requires groundwater monitoring, as well as corrective actions where groundwater contamination exceeds accepted levels. See id. at 21,396-408; see also
B. Factual Overview
KU operates the E.W. Brown Generating Station (“E.W. Brown“). E.W. Brown is a coal-burning power plant in Kentucky. Like all similar power plants, E.W. Brown burns coal in order to heat large amounts of water. The water turns into high-pressure steam and is funneled through pipes to a series of turbines connected to generators. The steam‘s pressure causes the turbines to spin, which, in turn, causes the generators to produce electricity. The steam passes through the turbines where more water is piped in to cool it and convert it back into condensed water. The condensed water then returns back to the start to repeat this cycle. Just as it sounds, the process uses a lot of water—both for power generation and to cool and condense steam. Water is also used to treat the coal waste generated from this process. As a result, most coal-burning power plants sit near bodies of water from which they draw for their power generation.
E.W. Brown is one such plant. It is located West of Kentucky‘s Dix River and adjacent to Herrington Lake, which was created by damming a portion of the Dix River. Herrington Lake is a large man-made lake, with a 4.6 square-mile footprint and a 35-mile span. It is a popular recreation destination for Kentucky residents. Since 1957, E.W. Brown has taken water from Herrington Lake in order to generate power for nearby residents.
The problem with burning coal to produce power is that the process also produces ash, or “coal combustion residuals” (commonly referred to as “CCRs“). Two forms of ash are generated by burning coal: (1) light-weight ash known as “fly ash” that is carried through the smokestacks and discharged into the air;3 and (2) heavier particles known as “bottom аsh” that remain at the base of the smokestacks. The bottom ash needs to be removed and disposed of in order to create room for new coal to be burned in the furnaces.
To dispose of coal ash, KU uses a “sluice” system—it combines the ash with lots of water and pipes that wastewater
permanently. KU has constructed two ash ponds at E.W. Brown, unceremoniously titled the “Main Ash Pond” and the “Auxiliary Ash Pond.” The Main Ash Pond has twice been expanded since it was opened and currently stretches 114 acres. It is estimated to house six million cubic yards of coal ash. The Auxiliary Ash Pond was first constructed as a temporary reservoir while KU expanded the Main Ash Pond. It covers 29.9 acres.
The plaintiffs, two environmental groups: Sierra Club and Kentucky Waterways Alliance (collectively “Plaintiffs“), contend that groundwater flows cause the ash ponds to release pollutants into Herrington Lake.
Some background on groundwater and its flow is necessary. Groundwater is subsurface water that tends to migrate from high elevation to low elevation. Different subsurface materials allow passage of groundwater at different rates and in different volumеs. For example, groundwater can hardly flow through clay, whereas it may pass quickly through fractured rock. Those types of terrain that facilitate groundwater movement—like fractured rock—are known as “aquifers,” whereas relatively impermeable terrain—like clay—is known as an “aquitard.”
Plaintiffs’ concern is that the ash ponds are contaminating the nearby groundwater and that this groundwater flows into Herrington Lake, causing excess pollution. The problem is exacerbated, they say, by the fact that the ash ponds sit on top of an aquifer. Specifically, the two ash ponds were built on top of karst terrain. Karst is created when a highly-soluble subsurface rock, often limestone, erodes. This creates a series of caverns, sinkholes, tunnels, and paths. Plaintiffs argue that because the ash ponds sit atop karst terrain, the groundwater flows through it more quickly and more abundantly, thus increasing the rate of pollution into Herrington Lake.
Coal ash can pollute water with a number of different chemicals including, but not limited to, arsenic, lead, calcium, and boron. What caught Plaintiffs’ attention in this case was another of those chemicals: selenium. Plaintiffs hired an ecotoxicology expert to test the water near E.W. Brown and he discoverеd elevated selenium levels in Herrington Lake and in the groundwater surrounding the coal ash ponds. He also found that the fish in Herrington Lake were already being harmed by the selenium levels. While selenium is healthy (indeed,
necessary) in certain small amounts, too much of it can become extremely toxic for fish. Excess selenium accumulates in fish tissue, where it is passed to offspring through a parent‘s eggs. This can kill developing fish before they hatch or lead to deformities such as misshapen bones once they hatch. Those deformities are often lethal. In short, selenium poisoning poses a critical problem for aquatic wildlife.
C. Regulatory Overview
In 2011, KU decided to convert its Main Ash Pond into a dry landfill. It submitted its application to do so to the Kentucky Department of Environmental Protection (“KDEP“) in August 2011. KDEP required KU to monitor the groundwater surrounding the Main Ash Pond before it would issue a landfill permit. In 2013, KU submitted
Displeased with that outcome, Plaintiffs notified the relevant parties that they intended to sue KU under both the CWA and RCRA. KDEP reviewed Plaintiffs’ notice and their corresponding groundwater studies and determined that KU was in violation of its water pollution limits. It issued a Notice of Violation to that effect in January 2017. Kentucky‘s Energy and Environment Cabinet (the “Cabinet“) and KU then entered into an “Agreed Order” in an effort to address the pollution problem. As required by the Agreed Order, KU submitted a “Corrective Action Plan” (“CAP“) in April 2017. It outlined extensive monitoring that KU was required to conduct in order to track the progress of the pollution coming from the coal ash ponds. If those studies indicated that the pollution was not improving, the CAP contemplated additional remedial measures.
Unsatisfied, Plaintiffs filed their federal lawsuit in the Eastern District of Kentucky in July 2017. The district court dismissed both of Plaintiffs’ claims. First, it rejected Plaintiffs’
legal contention that the CWA covers pollution of this sort. Second, it held that Plaintiffs lacked standing on their RCRA claim because it could not redress a claim that was already being remedied by Kentucky‘s regulatory agencies. Since it concluded that Plaintiffs lacked standing, the district court held that it did not have jurisdiction to hear their claim.
II. ANALYSIS
We review the district court‘s order granting KU‘s motion to dismiss de novo. U.S. Citizens Ass‘n v. Sebelius, 705 F.3d 588, 597 (6th Cir. 2013). Plaintiffs’ complaint may only proceed if it alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A. CWA Claim
A CWA claim comes to life when five elements are present: “(1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source.” Consumers Power Co., 862 F.2d at 583 (quoting Nat‘l Wildlife Fed‘n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982)). In order for groundwater pollution that ultimately affects surface waters to fall within the scope of the CWA, it must fit within those five elements. Plaintiffs offer two theories as to why their claim does.
First, they argue that groundwater is a point source that deposits pollutants into Herrington Lake. This theory treats groundwater as if it were a pipe through which pollutants travel. Plaintiffs also argue that the karst terrain that carries the groundwater is a point source in that it amounts to a network of conduits through which pollutants flow. We refer to this theory as the “point source” theory.
Next, Plaintiffs adopt the so-called “hydrological connection” theory.5 Under this
pollutants pass before being discharged into navigable waters. The point sources under this theory, as Plaintiffs argue, are the coal ash ponds themselves.
We reject both theories; the CWA does not extend its reach to this form of pollution. The text and statutory context of the CWA make that clear. In so holding, we disagree with the decisions from our sister circuits in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai‘i Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018).6
Text. To resolve this issue, the CWA‘s text is both a helpful starting place and a mandatory one. See Mich. Flyer LLC v. Wayne Cty. Airport Auth., 860 F.3d 425, 428 (6th Cir. 2017). As noted, the CWA regulates parties that pollute navigable waters where that pollution comes from a “point source.”
Plaintiffs’ point source theory fails because neither groundwater nor the karst through which it travels is a point source under these definitions. While groundwater may indeed be a “conveyance” in that it carries pollutants, see Convey, Webster‘s Third New International Dictionary, Unabridged. 2018.. Web. 21 Aug. 2018 (“[T]o bear from one place to another“; “[T]o transfer or deliver“), it is not “discernible,” “confined” or “discrete.” To be discernible, groundwater must be capable of being “recognize[d] or identif[ied] as separate or distinct.” Discern, Webster‘s Third New International Dictionary, Unabridged. 2018.. Web. 22 Aug. 2018. Similarly, it must be discrete, meaning it must “constitut[e] a separate entity” or “consist[] of distinct . . . elements,” Discrete, Webster‘s Third New International Dictionary, Unabridged. 2018.. Web. 22 Aug. 2018, and it must be confined, meaning “limited to a particular location,” Confined, Webster‘s Third New International Dictionary, Unabridged. 2018.. Web. 22 Aug. 2018. But groundwater is none of those things. By its very nature, groundwater is a “diffuse
medium” that seeps in all directions, guided only by the general pull of gravity. See 26 Crown St. Assocs., LLC v. Greater New Haven Reg‘l Water Pollution Control Auth., No. 3:15-CV-1439, 2017 WL 2960506, at *8 (D. Conn. July 11, 2017). Thus, it is neither confined nor discrete. And while dye traces can roughly and occasionally track the flow of groundwater, they do not render groundwater “discernible.” Indeed, Plaintiffs’ own expert explained that when he injected dyes into three different locations from the Main Ash Pond in 2012, only one was recovered. One cannot look at groundwater and discern its precise contours as can be done with traditional point sources like pipes, ditches, or tunnels.
The CWA‘s text also forecloses the hydrological connection theory. The backbone of Plaintiffs’ argument in favor of the hydrological connection theory is that the relevant CWA provision does not contain the word “directly.” Because it only prohibits the discharge of pollutants “to navigable waters from any point source,”
First, the guidelines by which a CWA-regulated party must abide—the heart of the CWA‘s regulatory power—are known as “effluent limitatiоns.”
These are caps on the quantities of pollutants that may be discharged from a point source and are prescribed on an industry-by-industry basis. See
Moreover, the CWA addresses only pollutants that are added “to navigable waters from any point source.”
conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft.” Id.; see also Consol. Coal Co. v. Costle, 604 F.2d 239, 249–50 (4th Cir. 1979), rev‘d in part sub nom. EPA v. Nat‘l Crushed Stone Ass‘n, 449 U.S. 64 (1980) (finding that “discharges which are pumped, siphoned or drained” fall within the definition of discharges from a “point source“); Appalachian Power, 545 F.2d at 1373 (concluding that “point source” pollution does not include “unchanneled and uncollected surface waters“). At its core, the Act‘s definition makes clear that some facility must be involved that functions as a discrete, not generalized, “conveyance.”
“Conveyance” is a well-understood term; it requires a channel or medium—i.e., a facility—for the movement of something from one place to another. See Webster‘s Third New International Dictionary 499 (1961); The American Heritage Dictionary of the English Language 291-92 (1976); see also S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004) (“[A] point source need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable waters‘” (emphasis added)). If no such conveyance produces the discharge at issue, the discharge would not be regulated by the Clean Water Act, though it might be by the RCRA, which covers and regulates the storage of solid waste, including coal ash, and its effect on groundwater.
2018 WL 4343513, at *5. The court felt that
[t]his understanding of the Clean Water Act‘s point-source requirement is consistent with the larger scheme of pollution regulation enacted by Congress. In regulating discharges of pollutants from point sources, Congress clearly intended to target the measurable discharge of pollutants. Not only is this revealed by the definitional text of “point source,” but it is also manifested in the effluent limitation enforcement scheme that the Clean Water Act employs. The National Pollutant Discharge Elimination System Program and § 1311‘s enforcement scheme specifically rely on “effluent limitation[s]“—restrictions on the “quantities, rates, and concentrations” of pollutants discharged into navigable waters.
33 U.S.C. § 1362(11) (defining “effluent limitation“). And state-federal permitting programs under the Clean Water Act apply these precise, numeric limitations to discrete outfalls and other “point sources,” see EPA v. California ex rel. Res. Control Bd., 426 U.S. 200, 205-08 (1976), at which compliance can be readily monitored. When a source works affirmatively to convey a pollutant, the concentration of the pollutant and the rate at which it is discharged by that conveyance can be measured. But when the alleged discharge is diffuse and not the product of a discrete conveyance, that task is virtually impossible.
Id. at *6.
support of their position. But the quote has been taken out of context in an effort to expand the scope of the CWA well beyond what the Rapanos Court envisioned.9
The courts and litigants to have relied on Rapanos in support of the hydrological connection theory have erred for a number of reasons. Not the least of which is that Rapanos is not binding here: it is a four-justice plurality opinion answering an entirely different legal question. See id. at 739 (concluding that certain wetlands and intermittent streams did not themselves fall within the CWA‘s definition of navigable waters). In any event, when Justice Scalia pointed out the absence of the word “directly” from
Context. This reading is strengthened in light of the CWA‘s other provisions and corresponding federal environmental laws. Invariably, courts that have adopted the hydrological connection theory rely heavily on the CWA‘s stated purpose of “restor[ing] and maintain[ing] . . . the Nation‘s waters.”
“simple and persuasive” rationale that “since the goal of the CWA is to protect the quality of surface waters, any pollutant which enters such waters, whether directly or thrоugh groundwater, is subject to regulation by NPDES permit” (quoting Wash. Wilderness Coal. v. Hecla Mining Co., 870 F. Supp. 983, 990 (E.D. Wash. 1994))). But such outsized reliance on
First, protecting navigable waters is only one of the CWA‘s expressly stated purposes. Just after declaring its intent to protect the “Nation‘s waters,” the CWA makes clear that it is also designed to
Second, turning to a statute‘s purpose is a “last resort of extravagant interpretation,” because Congress does not “pursue[] its purpose at all costs.” Rapanos, 547 U.S. at 752 (plurality opinion). It is true that Congress sought to protect navigable waters with the CWA.
3668, 3672. In response, Congress revamped the water pollution laws to focus on polluters (through the point-source requirement), rather than pollution. It left the rest to the states.
In addition to the CWA‘s stated purposes, other environmental statutes demonstrate why adopting either of Plaintiffs’ theories of liability would be untenable. Specifically, RCRA is designed to work in tandem with other federal environmental protection laws, including the CWA. See
Reading the CWA to cover groundwater pollution like that at issue in this case would upend the existing regulatory framework. RCRA explicitly exempts from its coverage any pollution that is subject to CWA regulation.
What is more problematiс, though, is the fact that, pursuant to RCRA, the EPA has issued a formal rule that specifically covers coal ash storage and treatment. See 80 Fed. Reg. 21,302 (Apr. 17, 2015) (the “CCR Rule“). The CCR Rule was designed to regulate, among other things, coal ash ponds. Id. at 21,303. Yet because the EPA issued the CCR Rule under RCRA, reading the CWA to cover coal ash ponds would gut the rule. Adopting Plaintiffs’ reading of the CWA would mean that any coal ash pond with a hydrological connection to a navigable water would require an NPDES permit, thus removing it from RCRA‘s coverage and, with it, the CCR Rule.
Almost all coal ash ponds sit near navigable waterways because of the large amounts of water needed to operate coal-fired power plants. For that reason, adopting Plaintiffs’ interpretation of the CWA would leave the CCR Rule virtually useless. We decline to interpret the CWA in a way that would effectively nullify the CCR Rule and large portions of RCRA. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (quoting 2A N. Singer, Statutes and Statutory Construction § 46.06, 181-86 (rev. 6th ed. 2000))).
Our task is “not merely [to find] a reasonable interpretation, but the best one.” United States v. Zabawa, 719 F.3d 555, 560 (6th Cir. 2013). Reading the CWA to extend liability to groundwater pollution is not the best one. For that reason, we reject both of Plaintiffs’ theories of liability and affirm the district court‘s dismissal.10
B. RCRA Claim
As discussed, the proper federal channel for Plaintiffs’ complaint is RCRA. Fortunately for Plaintiffs, their complaint also alleges a RCRA violation. But unfortunately for them, the district court concluded that it lacked jurisdiction to hear that claim. Its reasoning was straightforward—it believed that the state had already implemented a plan designed to address the conduct about which Plaintiffs complained and thus it could not issue separate relief. In other words, the district court perceived that it could not redress the Plaintiffs’ problems. Without a redressable claim, Plaintiffs lacked Article III standing, and the district court lacked jurisdiction. On appeal, KU urges us to affirm either because the district court lacked jurisdiction or because abstention was proper.
The motivation behind the district court‘s decision was sound: states are typically left to regulate their own environments and federal environmental regulatory statutes typically make
room for state
Plaintiffs filed their RCRA suit under
Here, Plaintiffs have met the strictures of RCRA‘s citizen-suit provision. They have alleged (and supported) an imminent and substantial threat to the environment, they have provided the EPA and Kentucky ninety days to respond to those allegations, and neither the EPA nor Kentucky has filed one оf the three types of actions that would preclude the citizen groups from proceeding with their federal lawsuit, see
As the district court recognized, this case looks like a strong contender for Burford abstention at first glance. See Burford v. Sun Oil Co., 319 U.S. 315 (1943). Burford instructs federal courts to avoid hearing cases where doing so would interfere with a state‘s regulatory efforts. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989). Here, Kentucky is actively regulating the problems Plaintiffs are worried about through the Agreed Order, and Burford might counsel federal courts against second-guessing the State‘s
decisions on that score. But applying Burford abstention here would be akin to grafting a new provision onto RCRA‘s diligent prosecution bar. Were we to abstain, we would effectively add a new component to that bar precluding citizen suits where a state is already trying to remedy the problem, regardless of the regulatory mechanism it is using. See, e.g., Chico Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20, 31 (1st Cir. 2011) (“To abstain in situations other than those identified in the statute . . . threatens an ‘end run around RCRA.‘” (quoting PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998))). Doing so would substitute our own judgment about the appropriate balance of state and federal interests for the ex-ante determination that Congress made regarding this balance when it enacted RCRA. See
Because Plaintiffs have met the requirements needed to pursue a RCRA citizen suit, and because Burford abstention is inappropriate where Congress has already
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s dismissal of Plaintiffs’ CWA suit. The CWA does not impose liability on surface water pollution that comes by way of groundwater. However, we REVERSE the district court‘s dismissal of Plaintiffs’ RCRA claim. Plaintiffs have met the statutory requirements to bring that suit, and the district court must entertain it. The case is REMANDED for further proceedings on that claim.
CONCURRING IN PART AND DISSENTING IN PART
CLAY, Circuit Judge, concurring in part and dissenting in part. Can a polluter escape liability under the Clean Water Act (“CWA“),
Plaintiffs have invoked the citizen-suit provision of the CWA, 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[.]”
The broad sweep of a defendant‘s potential CWA liability is limited in two ways. First, Congress included a list of exceptions in
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
exception has no statutory
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
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 pаss “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“).
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.”
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.” See Maj. Op. at 11. According to the majority, this would defeat CWA liability.2
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
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 12 (quoting with emphasis
denominator between wells, 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 somеthing, 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 the 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.
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
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
[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, see33 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
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 allegedly 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.
this one do not involve regulating groundwater. 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 explained that the issue is the regulation of navigable water via groundwater. Id. This distinction was also clear to the Fourth and Ninth Circuits. See Upstate Forever, 887 F.3d at 652 (“We do not hold that the CWA covers discharges
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 RCRA. Maj. Op. at 17. 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
discharges that are point source discharges subject to regulation under section 402 of the Clean Water Act” “are not solid wastes for the purpose of” the RCRA exclusion.
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
The obvious purpose of the industrial point source discharge exclusion in Section 1004(27) was to avoid duplicative regulation оf 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.
Since the comment period closеd 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 bulldоzes 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
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 ovеrride longstanding EPA regulations on a whim. See id.
For all these reasons, I believe the CWA clearly applies to the allegations 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, Plaintiffs have stated a valid claim that Kentucky Utility Company‘s unpermitted leaks are unlawful. Because the majority holds otherwise, I respectfully dissent in part. I agree with the majority‘s opinion only insofar as the majority finds that the district court erred by dismissing Plaintiffs’ RCRA claim.
Notes
We conclude that while arsenic from the coal ash stored on Dominion‘s site was found to have reached navigable waters—having been leached from the coal ash by rainwater and groundwater and ultimately carried by groundwater into navigable waters—that simple causal link does not fulfill the Clean Water Act‘s requirement that the discharge be from a point source. By its carefully defined terms, the Clean Water Act limits its regulation under § 1311(a) to discharges from “any discernible, confined and discrete conveyance.”
33 U.S.C. § 1362(14) (emphasis added). The definition includes, “but [is] not limited to[,] any pipe, ditch, channel, tunnel,