NO. 3:15-cv-00424
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
September 9, 2016
JUDGE CRENSHAW
MEMORANDUM OPINION
The Tennessee Clean Water Network and Tennessee Scenic Rivers Association (Plaintiffs) have filed a Complaint
I. BACKGROUND
Plaintiffs are two Tennessee conservation organizations claiming individual members who variously use, paddle, fish in, enjoy, and otherwise live, work, and recreate on the portion of the Cumberland River in the vicinity of and downstream from the Gallatin Plant. (Doc. No. 1 at ¶¶ 22, 29, 31.) TVA is a corporate agency and instrumentality of the United States created by the Tennessee Valley Authority Act of 1933, see
A. The Gallatin Plant & Ash Ponds
The Gallatin Plant is a four-unit, coal-fired power plant on Odom s Bend Peninsula, adjacent to the portion of the Cumberland River known as Old Hickory Lake. (Doc. No. 87 at ¶ 1.) Old Hickory Lake is a reservoir created by the construction of the Old Hickory Lock and Dam downstream from the location of the Gallatin Plant. (Doc. No. 125 at ¶¶ 2 3.) Both the Lock and Dam and the Plant were constructed during the 1950s, through cooperation between TVA and the Army Corps of Engineers. (Doc. No. 87 at ¶¶ 11 14.) The Gallatin Plant now burns approximately four million tons of coal each year, generating both wanted electricity and unwanted waste byproducts, in particular coal ash. The Plant can create as much as 235,000 tons of coal ash annually. (Doc. No. 1 at ¶ 49; Doc. No. 14 at ¶ 49.) The Plant removes its coal ash by mixing the ash with water and sluicing it to a series of unlined coal ash ponds that are separated from the Cumberland River by earthen dikes. (Doc. No. 14 at ¶¶ 49 50.)
Until around 1970, the Plant used a series of ash ponds now known as Non-Registered Site #83-1324 (Non-Registered Site). Around 1970, when the Non-Registered Site reached capacity, the Plant stopped using the site for coal ash disposal, but the pond area which, TVA admitted in its Answer, measures approximately 73 acres still contains an unknown amount of coal ash. (Id. at ¶¶ 79 81.) In or around 1997, the Tennessee Department of Environment & Conservation (TDEC) asked TVA to formulate a closure plan for the Non-Registered Site, which it did. As part of the closure plan, TVA began monitoring the area s groundwater for coal ash contamination in 2000. (Id. at ¶¶ 82 83.)
TVA now sluices its ash-water mixture to a different series of ponds (Ash Pond Complex). (Doc. No. 125 at ¶ 35.) Plaintiffs have identified the Ash Pond Complex as consisting of five ponds: Ash Pond A; Ash Pond E; and Stilling Ponds B, C, and D. (Doc. No. 134 at SOF 36.) Coal ash waste begins its passage through the complex in either Ash Pond A or E, where some ash is allowed to settle before the water is sent to the stilling ponds. In the
Somewhat complicating matters, Plaintiffs dispute that the Ash Pond Complex is merely a manmade wastewater treatment system that discharges into the Cumberland River. Rather, citing United States Geological Survey maps that pre-date the creation of the Ash Pond Complex, Plaintiffs allege that a portion of the area on which the ponds were built had been covered by a stream known as Sinking Creek that connected to the river. (Doc. No. 1 at ¶ 107.) Sinking Creek, Plaintiffs argue, was and continues to be a water of the United States.1 Under such a reading, at least portions of the Ash Pond Complex, in particular Ash Ponds A and E, would themselves be waters of the United States, because they are inseparable from Sinking Creek itself. (Id. at 164 166.)
B. The Gallatin Plant s NPDES Permit
The CWA anticipates a partnership between the States and the Federal Government, animated by a shared objective: to restore and maintain the chemical, physical, and biological integrity of the Nation s waters. Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (quoting
The Environmental Protection Agency ([ EPA ]) initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials. Nat l Ass n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650 (2007) (citing
C. Alleged Unauthorized Discharges
The Gallatin Plant is located in an area with what is known as karst topography. Karst topography is formed over limestone or dolomite, and characterized by sinkholes, caves, and underground drainage. (Doc. No. 1 at ¶ 68; Doc. No. 14 at ¶ 68.) Plaintiffs allege that TVA has long known that the ash ponds construction and the area s topography would be expected to, and in fact have, resulted in contamination of the Cumberland River both through direct leaks from the ponds to the river as well as through leaks into groundwater that is hydrologically connected to the river. (Doc. No. 1 at ¶¶ 60 65.) In 1977, for example, TVA prepared a report titled Magnitude of Ash Disposal Pond Leakage Problem: Gallatin Steam Plant, that Plaintiffs contend identified sinkhole-related leakages so great that the leakage rate was equal to the rate of the inflow of wastewater itself. (Id. at ¶¶ 69 72.) Plaintiffs allege that sinkholes caused illegal discharges in at least 2005 and 2010 as well. (Id. at ¶ 73.)
According to Plaintiffs, TVA s monitoring wells have shown that groundwater in and around the Ash Pond Complex is contaminated by pollutants including aluminum, cobalt, manganese, and sulfate, in concentrations above relevant state and federal standards. (Id. at ¶ 116.) In addition to the groundwater contamination, Plaintiffs contend that TVA has identified and actively monitored numerous seeps through which wastewater passed directly from the ponds into the Cumberland River. (Id. at ¶ 117.) Seep, as Plaintiff uses the term, refers to slow pore-space seepage of contaminants, as opposed to conduit flow through fissures and sinkholes that provides rapid connectivity with little to no pollutant attenuation.2 (Doc. No. 1
The alleged contamination that Plaintiffs have identified is not limited to the still active Ash Pond Complex. Plaintiffs allege that, by at least 2002, TVA s groundwater monitoring around the no longer active Non-Registered Site revealed beryllium, cadmium, and cobalt in excess of the EPA s maximum contaminant levels ( MCLs ) for groundwater protection, and that a 2012 TVA study found that groundwater discharging into the Cumberland River from beneath the Non-Registered Site contained beryllium, cadmium, nickel, and zinc at levels that may pose a risk to aquatic life. (Id. at ¶¶ 84, 90.) Plaintiffs further claim that independent testing at locations on the Cumberland River shore adjacent to the Non-Registered Site in February of 2015 found levels of arsenic, copper, nickel, and zinc in excess of EPA Region 4 (Southeast) screening values. (Id. at ¶ 93.) The Non-Registered Site s alleged discharges into the groundwater render it, in Plaintiffs words, essentially a closed, but leaking[,] wastewater facility. (Id. at ¶ 95.)
D. Plaintiffs Notice to Regulators
Although the primary responsibility for enforcement [of the CWA] rests with the state and federal governments, private citizens provide a second level of enforcement and can serve as a check to ensure the state and federal governments are diligent in prosecuting Clean Water Act violations. Sierra Club v. Hamilton Cty. Bd. Of Cty. Comm rs, 504 F.3d 634, 637 (6th Cir. 2007). In furtherance of that role, a citizen may file a suit to enforce the CWA against an alleged polluter if certain procedural requirements are met.
On November 10, 2014, counsel for Plaintiffs sent a Notice of Violation letter to TVA, TDEC, and the EPA. (Doc. No. 1-3.) The letter informed the recipients that the Plaintiffs had identified serious and ongoing unpermitted violations of the CWA at the Gallatin Plant, and that the
E. State Enforcement Action
On January 7, 2015, the State of Tennessee filed an original enforcement action against TVA in Davidson County Chancery Court under the Tennessee Solid Waste Disposal Act ( SWDA ),
On January 21, 2016, the Davidson County Chancery Court entered an Agreed Temporary Injunction between the State of Tennessee and TVA, requiring TVA to develop an Environmental Investigation Plan (EIP) for the [Gallatin Plant] and submit it to TDEC within 60 days of the entry of this Order. (Doc. No. 42-2 at 4.) TVA was directed to include in the EIP a schedule of the work to be performed to fully characterize the hydrology and geology of the [Gallatin Plant] and identify the extent of soil, surface water, and groundwater contamination by CCR [Coal Combustion Residual] material. (Id. at 4.) The court also wrote that [i]n signing this Agreed Temporary Injunction, the Court does not intend for this agreed order to have an effect on the progression of the pending federal lawsuit in this Court. (Id. at 7.) Shortly after entering the Agreed Temporary Injunction, the court also directed the parties to provide periodic status updates every seventy-five days. (Doc. No. 77-1 at 2.) The status reports in that matter show that TVA circulated its first proposed EIP in March of 2016, and the parties, including Plaintiffs in their capacity as plaintiff-intervenors, have been meeting and communicating in efforts to agree upon an appropriate EIP. (Doc. No. 77-2; Doc No. 109-2.)
F. Federal Complaint
Plaintiffs filed their Complaint in this case on April 14, 2015. (Doc. No. 1.) In the Complaint, Plaintiffs allege that the State Enforcement Action omitted a number of alleged CWA violations covered by their 60-day notice letter:
The State Complaint did not include multiple ongoing violations of the Clean Water Act, including: (1) multiple permit violations alleged by the Conservation Groups in the 60-day notice; (2) that TVA is unlawfully discharging pollutants into the surface water of the Cumberland River, as opposed to the groundwater beneath the Gallatin Plant coal ash facility only; and (3) that TVA unlawfully discharged, and continues to unlawfully discharge, coal ash into Sinking Creek, a water of the United States.
(Doc. No. 1 at ¶ 20.) TVA has conceded that the third of these allegations that TVA unlawfully discharged pollutants into Sinking Creek was not covered by its State complaint, but disputes the contention that it failed to include any other relevant allegations. (Doc. No. 14 at ¶ 20.)
The federal Complaint pleads five claims, the last of which consists of five separate sub-claims. Claim A asserts that TVA unlawfully discharged pollutants into the waters of the United States through hydrologically connected groundwater discharges. (Doc. No. 1 at ¶¶ 151 161.) Claim B is premised on Plaintiffs contention that TVA improperly used Sinking Creek, a water of the United States, as a wastewater treatment facility. (Id. at ¶¶ 162 171.) Claim C alleges CWA violations based on contamination of the Cumberland River from the [Non-Registered Site]. (Id. at ¶ 173.) Claim D similarly alleges violations based on contamination of the Cumberland River from the Ash Pond Complex. (Id. at ¶ 178.) Finally, Claims E.a through E.e are based on violations of various provisions of the NPDES permit: Claim E.a is premised on subsection I.A.b; Claim E.b is premised on subsection I.A.c; Claim E.c is premised on subsection II.A.4.a; Claim E.d is premised on subsection II.C.2; and Claim E.e is premised on subsection II.C.3. (Id. at ¶¶ 181 208.)
The parties have continued to litigate this case and the State Enforcement Action, and have filed the various aforementioned motions in this Court. The Court will deal with the motions, as necessary, in turn.
II. MOTIONS TO DISMISS & FOR JUDGMENT ON THE PLEADINGS
TVA has filed four different motions raising various arguments that all or part of the Plaintiffs claims should be dismissed pursuant to
A. Standard of Review
For purposes of a motion to dismiss for failure to state a claim upon which relief can be granted under
B. Diligent Prosecution Bar
TVA first asks the Court to dismiss this action altogether under the CWA s diligent prosecution bar. (Doc. No. 12.) Any citizen with constitutional standing to do so may file an action against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation of the CWA.
1. Comparability
Plaintiffs argue first that the diligent prosecution bar does not apply in this case because the TWQCA is insufficiently comparable to the relevant provisions of the CWA. In so arguing, Plaintiffs rely in significant part on the Sixth Circuit s en banc opinion in Jones v. City of Lakeland, Tennessee, 224 F.3d 518, 521 (6th Cir. 2000). In Jones, riparian landowners sued the City of Lakeland alleging violations of its NPDES permit, and the city argued that the action was barred because the matter was already the subject of an administrative proceeding under the TWQCA. The court concluded that the diligent prosecution bar of
As TVA correctly points out, however,
expressly acknowledge that citizens may not be able to intervene as a matter of right in a state suit, providing that in any such action in a court of the United States any citizen may intervene as a matter of right. (Emphasis added.) Congress could have limited
2. Scope of Allegations
Plaintiffs next argue that their Complaint should not be dismissed because it targets different violations than the State Enforcement Action. [A] diligent prosecution bar only applies to those issues sought to be addressed in a citizen action that overlap with those issues sought to be addressed by the government s suit. United States v. Bd. of Cty. Comm rs of Hamilton Cty., Ohio, No. 1:02 CV 00107, 2005 WL 2033708, at *11 (S.D. Ohio Aug. 23, 2005) (citing Frilling v. Vill. of Anna, 924 F. Supp. 821, 836 (S.D. Ohio 1996)). Without such a limitation, the diligent prosecution bar would mean that a government enforcement action premised on even a single violation would prevent citizen suits for all, even wholly unrelated, violations. Plaintiffs contend
that they carefully drafted their Complaint in this action not to overlap with the State s. TVA argues, in response, that the appropriate test for determining overlap between this case and the State Enforcement Action is not whether a technical distinction can be drawn between the pleadings, but whether they seek to abate and remediate the same issues. See, e.g., Karr v. Hefner, 475 F.3d 1192, 1199 (10th Cir. 2007) (applying diligent prosecution bar despite consent decree s omission of several specific violations alleged by citizen because the consent decree had as its underlying purpose the resolution of all claims ).
(1) unauthorized discharges through hydrologic flow into waters of the United States ([Doc. No. 1] at ¶¶ 151 161); (2) improper use of Sinking Creek, a water of the United States, as a wastewater treatment facility (id. at ¶¶ 162 171); (3) unlawful contamination of the groundwater and Cumberland River from the Abandoned Ash pond (id. at ¶¶ 172 175) ( Because the State complaint does not include claims for contamination of the Cumberland River from the Abandoned Ash Pond [rather than just the groundwater], the Conservation Groups are enforcing these violations of the Clean Water Act in this Complaint ); [and] (4) unlawful contamination of the groundwater and Cumberland River from the Ash Pond Complex (id. at ¶¶ 176 180) ( Because the State Complaint does not include claims for contamination of the Cumberland River from the Ash Pond Complex, the Conservation Groups are enforcing these violations of the Clean Water Act in this Complaint ) . . . .
(Doc. No. 19 at 10 11.) Finally, Plaintiffs point out that their Complaint alleges violations based on a number of provisions of the NPDES Permit that the State did not cite in its own complaint. (Id. at 11.)
Plaintiffs are correct that its Sinking Creek allegations are nowhere to be found in the State Enforcement Action. Similarly, a review of the State s complaint confirms that, with regard to the Non-Registered Site, the State Enforcement Action is targeted at groundwater contamination, not contamination of the Cumberland River through either seeps or any other leaks or hydrologic connections. (See Doc. No. 13-5 at ¶¶ 20 21.) The Court therefore agrees that discharges from the Non-Registered Site to the Cumberland, either directly or otherwise, represent a discrete set of allegations raised by Plaintiffs in this Court that are not barred by the pendency of the State Enforcement Action.
With regard to the Ash Pond Complex, however, the State s complaint can plausibly be read to refer to both groundwater and surface water contamination. Specifically, the State s complaint pleads violations of the TWQCA arising out of [a]reas in the dikes where impounded wastewater may [sic] or is escaping from the Ash Pond Complex[,] generally referred to as seeps, without limiting its allegations to groundwater only. (Id. at ¶¶ 35 37, 51.) Nothing in the State s complaint suggests that its claims related to seeps do not contemplate discharges into the Cumberland River as well as the groundwater. Accordingly, the Court agrees with TVA that this action overlaps, at least in part, with the State Enforcement Action with regard to both ground and surface water contamination from the Ash Pond Complex.
The Court agrees with Plaintiffs, however, that their decision to craft their federal Complaint to reach all hydrologic connections, not merely seeps, results in their having pled farther-reaching allegations than the State raised in the Chancery Court. At least as it pertains to the Ash Pond Complex, the State s complaint appears to limit itself to leaks that can be characterized as seeps. Plaintiffs federal Complaint, in contrast, contemplates both leaks that are purely seeps and leaks based entirely or in part on faster-moving conduit flows, such as through sinkholes and fissures. (Compare Doc. No. 1 at ¶ 152 with Doc. No. 13-5 at ¶¶ 35 37, 51.) The Court therefore concludes that Plaintiffs allegations that involve forms of wastewater
As for the permit violations, the State s complaint expressly alleges violations of Parts II.A.4.a and II.C.1, but also makes broader reference to unpermitted discharges, a phrase that, albeit not grounded in a specific citation to NPDES subsections, can be fairly read to encompass the terms of the permit as a whole. (Doc. No. 13-5 at ¶¶ 51 53.) The appropriate test for determining which permit-based claims overlap with the State Enforcement Action therefore is not to mechanically check off which provisions the State has cited, but to look to the substance of the underlying allegations. With regard to alleged unauthorized discharges, it is the view of the Court that the distinctions raised in the preceding paragraphs adequately cover where the respective complaints do and do not overlap.
While the State s complaint was in some ways crafted narrowly, the Complaint in this action was crafted broadly, with references to many alleged violations that plainly overlap with the State Enforcement Action. Plaintiffs, however, have fairly pled some allegations that do not overlap: unlawful use of Sinking Creek as a wastewater treatment facility; unauthorized discharge to the Cumberland River from the Non-Registered Site; and discharge to the Cumberland River from the Ash Pond Complex through hydrologic connections that cannot be characterized solely and exclusively as seeps alone. These conceptually distinct allegations are, contrary to TVA s argument, simply not the same issues being pursued by the State (Doc. No. 24 at 5). TVA s conclusory assertion that the State Enforcement Action will remediate issues that are not named in the State s complaint is insufficient to deprive this Court of its jurisdiction to consider those allegations.
3. Lack of Diligent Prosecution
Plaintiffs argue that none of their claims should be dismissed under the diligent prosecution bar, because that State s prosecution has not been diligent. The standard for determining whether an action is being diligently prosecuted, however, has been described as quite deferential, requiring a plaintiff to meet a high standard to demonstrate that [the government] has failed to prosecute a violation diligently. Karr, 475 F.3d at 1198. [A] CWA enforcement action will be considered diligent where it is capable of requiring compliance with the Act and is in good faith calculated to do so. The Piney Run Pres. Ass n v. The Cty. Comm rs Of Carroll Cty., Md., 523 F.3d 453, 460 (4th Cir. 2008) (citation omitted). Section 1365(b)(1)(B) does not require government prosecution to be far-reaching or zealous. It requires only diligence. Nor must an agency s prosecutorial strategy coincide with that of the citizen-plaintiff. Karr, 475 F.3d at 1197.
Plaintiffs argument that the State Enforcement Action is not being prosecuted diligently consists in large part of Plaintiffs protesting the pace and aggressiveness of the State s litigation efforts. Plaintiffs take particular issue with three features of the State Enforcement Action: first, that TDEC Commissioner Robert Martineau allegedly publicly acknowledged that TVA would rather be dealing with [TDEC] than a federal judge (Doc. No. 1-6 at 3); second, that the State did not act diligently to advance the litigation in the months immediately following the filing of its complaint (Doc. No. 19 at 12); and third, that the agreed injunctive order currently in place in the State Enforcement Action does not itself require
On close examination, however, nothing Plaintiffs have identified rises to the level of showing bad faith or suggesting that the State Enforcement Action is incapable of bringing about compliance with the underlying standards. Insofar as Martineau s statement to the press would be appropriate for the Court s consideration, it is clear from the context of the statement that Martineau was (1) merely attempting to restate something that a TVA representative had allegedly said and (2) the issue was posed to Martineau by a reporter in reference to TVA s alleged lesser exposure to penalties in a state, rather than federal, action. (Doc. No. 1-6 at 3) Even if TVA would prefer to be in State court, and even if the State is aware of that preference, that alone would not amount to a showing of bad faith. As to the delay early in the State Enforcement Action litigation, the experience of the Court is that comparable delays are not so unusual to give rise to an inference of a lack of diligence. Finally, it is unsurprising that the agreed injunctive order in the State Enforcement Action does not itself require compliance, because it does not purport to be a final resolution of the State s allegations. Rather, it appears to be an ordinary intermediate mechanism for managing the flow of the case and the underlying fact finding. (Doc. No. 42-2 at 3 4.) Entering such an order is in no way incompatible with and may, in some instances, be evidence of diligent prosecution. Although this Court agrees with Plaintiffs that their federal Complaint includes some allegations that the State is not prosecuting at all, there is no basis for concluding that, for the claims the State is prosecuting, it is not prosecuting them diligently.
4. State Law
Plaintiffs finally argue that the diligent prosecution bar should not apply, because the TWQCA itself includes language to the effect that the Act is not intended to estop efforts by any party, such as Plaintiffs, to abate pollution. See
5. Application of the Bar
At the time Plaintiffs filed their Complaint, the Gallatin Plant was already the subject of a pending enforcement action brought by the State, and, because that State-initiated action has been litigated in apparent good faith and diligence, Plaintiff s claims must be dismissed insofar as they overlap with the allegations at issue in the State s complaint. Some of Plaintiffs allegations, however, are not barred because, at the time this case was brought, they were not at issue in the State matter. The Court is well aware that the non-overlapping allegations are still closely connected, and that the crisscrossing tracks of the cases will undoubtedly give rise to complications and redundancies. The alternative, though, is to treat the State s decision to proceed narrowly as an absolute bar on citizen enforcement against violations that the State complaint does not even consider. Such a holding would run counter to the well-recognized role of citizen suits in supplementing government authority under the CWA. Accordingly, the Court will grant TVA s Motion (Doc. No. 12) only in part and will
C. Abstention
In its motion seeking dismissal under the diligent prosecution bar (Doc. No. 12), TVA suggests that, if the Court does not dismiss this matter outright, it should abstain from proceeding
under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Pursuant to the Supreme Court’s holding in Colorado River, “a federal court may, in certain limited circumstances, decline to adjudicate a claim that is already the subject of a pending state-court case.” RSM Richter, Inc. v. Behr Am., Inc., 729 F.3d 553, 556 (6th Cir. 2013). A court called upon to consider Colorado River abstention must engage in a two-step process: first, the Court must determine if the State and federal proceedings are “actually parallel” to one another; and then, only if the threshold requirement of parallelism is met, the Court will engage in a multi-factor balancing analysis to decide whether to abstain. Romine v. Compuserve Corp., 160 F.3d 337, 339–41 (6th Cir. 1998). Underlying this analysis is the fundamental principle that “federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (citing Colorado River, 424 U.S. at 821). Accordingly, “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River, 424 U.S. at 813. Because abstention is an “extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it,” the Court will only abstain in cases presenting “the clearest of justifications” for doing so. Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002).
In light of the high standard required to justify abstention, the Court concludes that Plaintiffs’ case, as it exists after the application of the diligent prosecution bar, is not sufficiently parallel to justify this Court’s inaction under Colorado River. “For the cases to be considered parallel, ‘substantially the same parties must be contemporaneously litigating substantially the same issues,’ and ‘the critical question is whether there is a substantial likelihood that the state litigation will dispose of all claims presented in the federal case.’” Summit Contracting Grp., Inc. v. Ashland Heights, LP, No. 3:16-CV-17, 2016 WL 2607056, at *3 (M.D. Tenn. May 6, 2016) (quoting Capitol Wholesale Fence Co. v. Lumber One Wood Preserving, LLC, No. 3:13-cv-00521, 2014 WL 7336236, at *3 (M.D. Tenn. Dec. 22, 2014) (emphasis added)). TVA has not demonstrated that the State Enforcement Action is substantially likely to dispose of claims arising out of discharges from the Non-Registered Site into the Cumberland River, discharges into Sinking Creek, or discharges from the Ash Pond Complex through leaks that are not seeps. Accordingly, the Court will not abstain in this matter, for the same reasons it did not dismiss the Complaint in full under the diligent prosecution bar.
TVA next asks the Court to dismiss Plaintiff’s claims for civil penalties because TVA is an agency of the United States entitled to immunity from penalties under United States Department of Energy v. Ohio, 503 U.S. 607, 611 (1992) (“DOE v. Ohio”). (Doc. No. 28.) Plaintiffs argue that TVA is not entitled to sovereign immunity because it is a corporate instrumentality rather than a federal agency, and that, in the alternative, its immunity has been unequivocally waived.
As it concerns the government of the United States, “[s]overeign immunity is the familiar principle that the government cannot be sued except by the consent of Congress.” United States v. Droganes, 728 F.3d 580, 589 (6th Cir. 2013) (citing United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Michel, 282 U.S. 656, 659 (1931)). Sovereign immunity extends not only to the United States acting under its own name, but also its agencies. Parrett v. Se. Boll Weevil Eradication Found., Inc., 155 F. App’x 188, 191 (6th Cir. 2005) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Lee, 106 U.S. 196, 205 (1882)). A waiver of sovereign immunity “must be express, clear and unequivocal.” Reed v. Reno, 146 F.3d 392, 398 (6th Cir. 1998) (citing Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir. 1993)). “Further, the language of any waiver of sovereign immunity is strictly construed in favor of the United States.” Id. (citing Markey v. United States, 27 Fed. Cl. 615, 622 (Fed. Cl. 1993)).
In DOE v. Ohio, the Supreme Court held that the terms of the CWA itself do not waive “the National Government’s sovereign immunity from liability for civil fines imposed by a State for past violations” of the Act. 503 U.S. at 611. In that case, the State of Ohio had sued the United States Department of Energy (“DOE”) alleging that the DOE had violated state and federal antipollution laws including the CWA. The DOE did not dispute that it was obligated to comply with the CWA, or that it was potentially subject to injunctive relief or coercive fines—that is to say, fines intended to induce compliance—under the statute. It argued only that, as a federal defendant, it could not be assessed fines based purely on past violations. Id. at 613–14. The Court agreed, concluding that the CWA’s provisions involving federal government entities did not amount to an unequivocal waiver of liability for non-coercive penalties. Id. at 627, 629. At least one Circuit has applied the reasoning of DOE v. Ohio to conclude that punitive fines may not be assessed against TVA. Sierra Club v. TVA, 430 F.3d 1337, 1357 (11th Cir. 2005).
The law of the Sixth Circuit is that “TVA, as an agency of the United States, enjoys sovereign immunity unless Congress specifically waives it.” Diversified Energy, Inc. v. TVA, 339 F.3d 437, 444 (6th Cir. 2003). “Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued.” Loeffler v. Frank, 486 U.S. 549, 554 (1988). TVA is one such entity: pursuant to
In the past, the Sixth Circuit has gone so far as to suggest that “[i]t is clear” under TVA’s sue-and-be-sued clause that “the TVA enjoys no sovereign immunity.” Queen v. TVA, 689 F.2d 80, 85 (6th Cir. 1982) (emphasis added). In intervening years, though, the Supreme Court has reemphasized the high bar to be applied to claims that a government has waived its sovereign immunity,5 and the Sixth Circuit has more recently taken a comparatively cautious approach to TVA’s waiver. See Diversified Energy, 339 F.3d at 444 (construing TVA’s sovereign immunity in the context of express jurisdictional limitations in the Contract Disputes Act). Nevertheless, TVA has not identified any intervening precedents to suggest that the Sixth Circuit has wholly overruled its prior recognition that the sue-and-be-sued clause serves as a broad, general waiver of sovereign immunity unless there is an applicable exception. See also N.C. ex rel. Cooper v. TVA, 515 F.3d 344, 348 (4th Cir. 2008) (“TVA’s ‘sue-and-be-sued’ clause stands as a broad waiver of sovereign immunity . . . .”).
Accordingly, while TVA tries repeatedly to frame the question before the Court as whether the sue-and-be-sued clause “alters” or “transforms” the waiver scheme of the CWA (Doc. No. 29 at 5–6; Doc. No 31 at 2), the appropriate inquiry is the opposite: whether the CWA in some way alters the broad, preexisting waiver to be found in the sue-and-be-sued clause. The Court concludes that it does not. In Loeffler v. Frank, the Supreme Court considered the interplay between a federal cause of action with a limited waiver of sovereign immunity and a federal entity’s preexisting, broad sue-or-be-sued waiver. 486 U.S. at 565. In that case, the United States Postal Service was subject to a broad waiver of sovereign immunity under its authorizing statutes. The plaintiff, however, sued under Title VII, which had a narrower waiver of sovereign immunity, in particular with regard to the recovery of prejudgment interest. Id. at 556–59. The Court concluded that the original, broader waiver remained intact, because “neither the language of . . . Title VII nor its legislative history contains an expression that the waiver of sovereign immunity it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sue-and-be-sued clauses.” Id. at 562.
The CWA
Nor is the Court persuaded by TVA’s citation to Missouri Pacific Railroad v. Ault, 256 U.S. 554 (1921), and that case’s progeny for the proposition that, even when an instrumentality is subject to a broad, general waiver of immunity, a court cannot impose a penalty in the absence of an additional waiver specifically addressing punitive remedies. As the Third Circuit has observed, “Ault concerned the sovereign immunity of the government itself,” not the immunity of a Loeffler-type entity that, like TVA, has been “launched . . . into the commercial world.” Pennsylvania v. U.S. Postal Serv., 13 F.3d 62, 66 (3d Cir. 1993) (quoting Franchise Tax Bd., 467 U.S. at 520). TVA nevertheless suggests that the Sixth Circuit adopted TVA’s preferred rule by applying Ault to the FDIC in Commerce Federal Savings Bank v. FDIC, 872 F.2d 1240, 1247-48 (6th Cir. 1989). TVA is correct that the FDIC, like TVA, is subject to a sue-or-be-sued provision. See
E. Jury Demand
TVA argues next that the Court should strike Plaintiffs’ jury demand because a plaintiff has no right to a jury trial in an action against a federal agency unless expressly granted that right by law. (Doc. No. 28.) Although Plaintiffs do not dispute the general proposition that the right to a jury trial in an action against the United States must be expressly granted, they argue that that rule does not extend to corporate instrumentalities, like TVA, that
The presumption against finding a right to a jury trial in a suit against the United States is founded in part on the protections of sovereign immunity, but also in significant part on the historical understanding of the right to a civil jury trial itself, as codified by the
The sue-and-be-sued clause, therefore, at best gets Plaintiffs halfway to a jury trial: it may remove the barrier created by sovereign immunity, but nothing in its language suggests that it creates a right to a jury in the first place. Plaintiffs do not identify any other specific statutory provisions entitling them to a jury trial, relying instead on the
F. Permit Shield
TVA argues next that the CWA’s “permit shield” provision,
In Sierra Club v. ICG Hazard, LLC, the Sixth Circuit concluded that discharges of pollutants that are not expressly included in a permit may still be subject to the shield if the pollutants had been within the reasonable contemplation of the permitting agency when the permit was issued. Id. at 286–88. For example, in that case, the defendant was accused of making unlawful discharges of selenium, and the relevant permit did not expressly authorize discharge of selenium into the relevant waters. The court nevertheless applied the permit shield to selenium discharges, because its review of the permitting process and context revealed that the permitting authority was aware of and had considered the possibility of selenium discharges when it issued the permit. Id. at 290.
While Plaintiffs do not dispute that this rule applies to discharges of unnamed pollutants, they urge the Court not to extend it to unnamed outfall locations, or at least not unnamed outfall locations that Plaintiffs argue may be characterized as independent point sources. Such a rule, they argue, is inconsistent with the CWA’s provisions requiring an NPDES permit for “all point sources of discharge of pollutants.”
1. Seeps
TVA argues that all of Plaintiffs’ claims based on seeps are categorically barred by the permit shield because seeps were within the reasonable contemplation of TDEC when it issued the NPDES Permit.7 TVA relies on the fact that, during the comment period for the NPDES Permit, the potential for seeps was brought to TDEC’s attention, and TDEC concluded that the permit adequately accounted for that risk. Specifically, after TDEC published its “Permit Rationale” for public comment, it received comments about the possibility of seeps, which TDEC considered and acknowledged. (Doc. No. 1-2 at 48.)
That TDEC contemplated some seeps under the permit, however, does not categorically shield TVA from liability for all seeps. TDEC’s responses to comments describe the type of seepage that the agency anticipated from the ponds in a number of ways, for example: as having a “flow rate . . . so low as not to be measurable”; as “more similar to a nonpoint source discharge, as it is diffused over a wide area”; and, perhaps most importantly, as resulting in only “de minimus [sic]” additional loading of pollutants. (Doc. No. 1-2 at 48.) The permit shield only protects discharges that the permit itself reasonably contemplates, and the NPDES Permit did not contemplate any and all manner of seepage without limitation. Moreover, the permit’s toleration of even the contemplated seepage is in the context of TVA’s presumed compliance with NPDES Permit provisions specifically designed to address the risk of seeps. Part III.B.(2) through (4) of the NPDES Permit, for example, require that TVA comply with self-inspection requirements intended to detect, among other things, seepage in the ponds’ earthen dikes, and that TVA take timely remediation measures if it discovers any changes indicating a potential compromise in the structural integrity of the impoundment. (Doc No. 1-2 at 26.) Among the failures Plaintiffs allege in their Complaint is that TVA “failed to properly maintain the impoundments to prevent seeps, or to properly inspect, identify, and remediate these seeps.” (Doc. No. 1 at ¶ 65.) Finally, the mere fact that TDEC was aware of some seeps or the possibility thereof does not mean that TVA necessarily fully and accurately disclosed all relevant seeps at the time the NPDES Permit was reissued. Among the key allegations in this case is that TVA’s actions have been insufficient to adequately identify and monitor the seeps. A permit applicant cannot disclose discharges that it does not know about.
The Court accordingly does not read the NPDES Permit as extending its
2. Sinking Creek
TVA argues next that Plaintiffs’ Claim B, which challenges the Gallatin Plant’s use of the alleged Sinking Creek area for the Ash Pond Complex, should be dismissed because the use of Ash Ponds A and E as treatment ponds was contemplated by and in compliance with the NPDES Permit. As the Complaint concedes, “[t]he NPDES Permit treats the discharges of waste streams . . . into Sinking Creek as internal outfalls within a waste treatment system,” rather than as discharges into the waters of the United States. (Doc. No. 1 at ¶ 168.) It is clear from the Complaint and the NPDES Permit itself that TVA’s use of the Ash Pond Complex as a wastewater treatment facility is central to the overall treatment system that the Permit envisions. (See Doc. No. 1 at ¶ 168; Doc. No. 1-2 at 57 (describing ash ponds)). Nor can it be said that TVA failed to disclose its plans for using the area at issue for its series of Ash Ponds. (See, e.g., Doc. 18-6 at PageID 619 (including map of ash ponds in permit renewal application)). TVA can hardly be blamed for its failure to make further disclosures or reports related to Sinking Creek, given that the NPDES Permit itself had accepted its premise that the Ash Pond Complex was a treatment facility.
As TVA correctly points out, Plaintiffs’ Sinking Creek argument is in essence a collateral attack on the permit itself. See Nat’l Parks Conservation Ass’n v. TVA, 175 F. Supp. 2d 1078–79 (E.D. Tenn. 2001) (holding that citizens could not collaterally challenge terms of Clean Air Act permit). Because the flow of contaminants from the Gallatin Plant to Ash Ponds A & E is both disclosed under and reasonably contemplated by the NPDES permit, TVA’s Motion to Dismiss for Failure to State a Claim (Doc. No. 12) will be further granted in part and Claim B will be dismissed. The Court’s ruling on this issue renders moot TVA’s Motion for Summary Judgment on Plaintiffs’ Claim B. (Doc. No. 57.)
G. Claims Under Specific Permit Provisions
Finally, TVA seeks judgment on the pleadings with regard to Plaintiffs’ Claim E and its subclaims, each arising out of an alleged violation of a different term of the NPDES Permit. (Doc. No. 102.) With regard to each of the provisions Plaintiff cites, TVA argues either that the provision is inapplicable or that Plaintiffs have not pled facts setting forth a plausible claim on which relief can be granted. Generally speaking, the Court must interpret an NPDES Permit in the same manner as it would a contract, determining first whether a particular term has an unambiguous meaning, and, if the meaning is ambiguous, looking to the document as a whole, its underlying purpose, and, if necessary, appropriate extrinsic evidence to aid the Court’s construction. Piney Run, 268 F.3d at 269–70. While the Court’s interpretation of the Permit is a question of law, Nw. Envtl. Advocates v. City of Portland, 56 F.3d 979, 982 (9th Cir. 1995),
1. Subsections I.A.b & c
Plaintiffs’ Claims E.a and E.b allege violations of subsections I.A.b and I.A.c of the NPDES permit, which provide:
Additional monitoring requirements and conditions applicable to Outfalls 001, 002, and 004 include:
[ . . . . ]
b. The wastewater discharge shall not contain pollutants in quantities that will be hazardous or otherwise detrimental to humans, livestock, wildlife, plant life, or fish and aquatic life in the receiving stream. The discharge activity shall not cause or contribute to violations of water quality criteria as stated in the TDEC Rules, Chapter 1200-4-2-.03. Under no circumstances may discharges create an exceedance of the numeric water quality criteria in the receiving stream for aquatic and human life as stated in State of Tennessee Rule 1200-4-3.
c. Sludge or any other material removed by any treatment works must be disposed of in a manner, which prevents its entrance into or pollution of any surface or subsurface waters. Additionally, the disposal of such sludge or other material must be in compliance with the Tennessee Solid Waste Disposal Act, TCA § 68-31-101 et seq. and the Tennessee Hazardous Waste Management Act, TCA 68-46-101 et seq.
(Doc. No. 1-2 at 11.) Plaintiffs assert that the Gallatin Plant’s alleged unlawful discharges through contaminated groundwater violate subsection I.A.b and that its seeps violate subsection I.A.c. (Doc. No. 1 at ¶ 182–88.)
TVA points out, however, that these provisions are by their own terms only “applicable to Outfalls 001, 002, and 004.”8 The very essence of Plaintiffs’ allegations, TVA argues, is that the allegedly unlawful discharges are not happening through authorized outfalls. With regard to subsection I.A.b, the plain language of the permit supports TVA’s reading. The express target of subsection I.A.b is “wastewater discharge”; as applied to Outfalls 001, 002, and 004, that language clearly refers to wastewater discharge from those outfalls. TVA’s argument is less persuasive, however, with regard to subsection I.A.c. The target of subsection I.A.c is not the wastewater discharge itself but the disposal of “sludge or other material removed by any treatment works.” The plain language of the provision clearly encompasses sludge or other material removed by means other than merely through discharge at the named outfalls. “Removal” through seeps or other leaks could therefore theoretically be encompassed by the provision.
2. Subsection II.A.4.a
NPDES Permit subsection II.A.4.a requires TVA to “at all times properly operate and maintain all facilities and systems (and related appurtenances) for collection and treatment which are installed or used by the permittee to achieve compliance with the terms and conditions of the permit.” (Doc. No 1-2 at 19.) Plaintiffs allege that several aspects of TVA’s maintenance of the ponds has been inadequate to achieve compliance with the permit. (Doc. No 1 at ¶¶ 189–98.) TVA argues that Plaintiffs’ assertion is a legal conclusion masquerading as a question of fact, and that its actions were, as a matter of law, in compliance with subsection II.A.4.a. TVA is mistaken. The question of whether TVA’s maintenance of its ponds has been adequate is unavoidably bound up with fact and inappropriate for resolution by the Court on the pleadings alone. For example, as the Court has noted supra, the NPDES permit contemplated seepage from the Ash Ponds at levels that, at most, would result in de minimis additional pollutant loading. Whether seeps from the Non-Registered Site exceed de minimis levels raises factual questions both about the seeps themselves and what would qualify as de minimis in the context of coal ash wastewater discharges. Whether TVA’s response to the seeps has been sufficient to safeguard the structural integrity of the ponds—as required by the permit (Doc No. 1-2 at 26)—presents another example of a question of fact. While the construction of the Permit’s terms presents a question of law, a term like “properly,” used in a specialized setting such as this one, sets forth a standard that must be understood and evaluated in a factual context that cannot be gathered solely from the four corners of the document. TVA is not entitled to judgment on the pleadings with regard to claim E.c.
C. Subsection II.C.2
NPDES Permit subsection II.C.2 creates an obligation to inform regulators within twenty-four hours of certain events:
In the case of any noncompliance which could cause a threat to public drinking supplies, or any other discharge which could constitute a threat to human health or the environment, the required notice of non-compliance shall be provided to the Division of Water Pollution Control in the appropriate regional Field Office within 24-hours from the time the permittee becomes aware of the circumstances.
(Doc. No. 1-2 at 17.) The Complaint alleges that TVA violated this provision by failing to alert regulators when it became aware that its ash ponds had contaminated the surrounding area through unauthorized discharges. TVA argues that it did not violate the 24-hour notice requirement because its seeps were contemplated by the NPDES Permit itself. This is merely a reiteration of TVA’s permit shield argument and fails for the same reason: although
3. Subsection II.C.3
NPDES Permit subsection II.C.3.b forbids “Sanitary Sewer Overflows” at the Gallatin Plant, which the permit defines as follows: “‘Sanitary Sewer Overflow’ means the discharge to land or water of wastes from any portion of the collection, transmission, or treatment system other than through permitted outfalls.” (Doc. No.1-2 at 22.) Plaintiffs contend that all discharges of ash pond wastewater other than through Outfall 001 are prohibited sanitary sewer overflows. TVA argues that, in context, the “wastes” mentioned in the definition of “sanitary sewer overflow” refers only to raw sewage from sanitary wastes, and that the Gallatin Plant has a separate system for sanitary waste disposal. TDEC regulations define a “sanitary sewer” as a “conduit intended to carry liquid and water-carried wastes from residences, commercial buildings, industrial plants and institutions together with minor quantities of ground, storm and surface waters that are not admitted intentionally.”
The Court is therefore unable, at this stage, to conclude, based only on the pleadings and documents appropriate for judicial notice in the
III. MOTION FOR SUMMARY JUDGMENT
Plaintiffs have filed a Motion for Partial Summary Judgment (Doc. No. 106) arguing that it is entitled to summary judgment on several of its claims because the discharges as conceded by the TVA are
A. Standard of Review
In reviewing a motion for summary judgment, this Court will only consider the narrow questions of whether there is any “genuine dispute as to any material fact” and whether “the movant is entitled to judgment as a matter of law.”
Related to Plaintiffs’ Motion, TVA has filed a Request for Judicial Notice (Doc. No. 136) asking the Court to take notice of documentation related to TVA’s NPDES permit for another facility in New Johnsonville, Tennessee. TVA had cited the terms of the New Johnsonville permit as a point of comparison in its argument that Plaintiffs are not entitled to summary judgment. Although the Court is not considering the New Johnsonville plant, and the Court is skeptical of how selective citation to one other NPDES permit will illuminate its consideration of the Gallatin Plant, the Request for Judicial Notice will be granted insofar as the cited materials are relevant to the consideration of the Motion.
B. Alleged Per Se Violations
Plaintiffs argue that they are entitled to summary judgment on several counts because the groundwater discharges and seeps they have identified represent per se violations of the Clean Water Act actionable under
Because Plaintiffs filed their Motion for Partial Summary Judgment before the Court had ruled on TVA’s Motion to Dismiss for Failure to State a Claim (Doc. No. 12) or its Motion for Judgment on the Pleadings as to All of Plaintiffs’ Claims Regarding Seeps (Doc. No. 51), Plaintiffs have understandably failed to address these factors in their motion. Even if the Plaintiffs’ had had such an opportunity, however, it appears likely to the Court that open questions about the extent of TVA’s defenses would likely preclude the Court from granting summary judgment. In any event, Plaintiffs’ Motion will be denied, and it is the hope of the Court that the parties will be able to sharpen the focus of this litigation in light of the issues raised in this Memorandum at the forthcoming status conference.
IV. CONCLUSION
For the foregoing reasons, TVA’s Motion to Dismiss for Failure to State a Claim (Doc. No. 12) will be GRANTED in part and DENIED in part; TVA’s Motion to Dismiss Plaintiffs’ Claim for Civil Penalties and Jury Demand (Doc. No. 28) will be DENIED as to civil penalties and GRANTED as to Plaintiffs’ jury demand, and the Court will STRIKE Plaintiffs’ demand for a jury; TVA’s Motion for Judgment on the Pleadings as to All Plaintiffs’ Claims Regarding Seeps (Doc. No. 51) will be DENIED; TVA’s Motion for Summary Judgment on Plaintiffs’ Claim B (Doc. No. 57) will be DENIED AS MOOT; TVA’s Motion for Judgment on the Pleadings as to Plaintiffs’ Claim E (Doc. No. 102) will be GRANTED as to Claim E.a and DENIED as to all other claims; TVA’s Request for Judicial Notice (Doc. No. 136) will be GRANTED; and Plaintiffs’ Motion for Partial Summary Judgment (Doc. No. 106) will be DENIED. Plaintiffs’ Claims B and E.a will be DISMISSED. Claims A, C, D, E.b, E.c, E.d, and E.e will be DISMISSED except insofar as they deal with one or both of the following: discharges from the Non-Registered Site into the Cumberland River; and discharges from the Ash Pond Complex via hydrologic flows that are not seeps alone.
An appropriate order will issue.
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE