Petition for Writ of Certiorari — Tennessee Clean Water Network, et al., Petitioners v. Tennessee Valley Authority
Supreme Court briefApr 15, 2019
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No. _________
In the
Supreme Court of the United States
_________
TENNESSEE CLEAN WATER NETWORK and
TENNESSEE SCENIC RIVERS ASSOCIATION,
Petitioners,
v.
TENNESSEE VALLEY AUTHORITY,
Respondent.
_________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
_________
PETITION FOR WRIT OF CERTIORARI
_________
SOUTHERN ENVIRONMENTAL
LAW CENTER
Frank S. Holleman III
Counsel of Record
Nicholas S. Torrey
Leslie Griffith
601 West Rosemary Street, Suite 220
Chapel Hill, North Carolina
27516-2356
(919) 967-1450
fholleman@selcnc.org
Amanda R. Garcia
Anne E. Passino
1033 Demonbreun Street, Suite 205
Nashville, Tennessee 37203
(615) 921-9470
Counsel for Petitioner Tennessee
Scenic Rivers Association
KENNERLY, MONTGOMERY &
FINLEY, P.C.
Michael S. Kelley
550 Main Street, Fourth Floor
Knoxville, Tennessee
37902-2567
(865) 546-7311
mkelley@kmfpc.com
Counsel for Petitioner
Tennessee Clean Water
Network
April 15, 2019
i
QUESTION PRESENTED
Absent authorization by permit, the Clean Water
Act prohibits the “discharge of a pollutant,” defined
as “any addition of any pollutant to navigable waters
from any point source.” 33 U.S.C. § 1362(12)(A). In
County of Maui v. Hawai’i Wildlife Fund, No. 18-260
(U.S. filed Aug. 27, 2018) (Maui), the Court granted
certiorari to determine “whether the [Clean Water
Act] requires a permit when pollutants originate
from a point source but are conveyed to navigable
waters by a nonpoint source, such as groundwater.”
In this case, after a trial, the district court found that
Respondent Tennessee Valley Authority is violating
the Clean Water Act by adding toxic coal ash
pollutants to the Cumberland River via a network of
pipe-like conduits in the bedrock through which
groundwater flows. The Sixth Circuit reversed,
holding as a matter of law that the Clean Water Act
never applies to any pollutant that travels from a
point source through groundwater before polluting
navigable waters.
The question presented is:
Whether a defendant’s addition of pollutants to a
navigable water from a point source via groundwater
conduits may ever violate the Clean Water Act’s
prohibition on the unpermitted “discharge of a
pollutant.”
ii
LIST OF PARTIES
Tennessee Clean Water Network and Tennessee
Scenic Rivers Association are petitioners here and
were the plaintiffs-appellees below. Tennessee Valley
Authority is the respondent here and was the
defendant-appellant below.
CORPORATE DISCLOSURE STATEMENT
Petitioners Tennessee Clean Water Network and
Tennessee Scenic Rivers Association have no parent
corporations and have issued no stock to any publicly
held company.
iii
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
LIST OF PARTIES ..................................................... ii
CORPORATE DISCLOSURE STATEMENT ............ ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES .......................................vi
PETITION FOR WRIT OF CERTIORARI .................1
OPINIONS BELOW ....................................................3
JURISDICTION ..........................................................3
STATUTORY PROVISIONS INVOLVED ..................3
STATEMENT OF THE CASE ....................................5
I.
Statutory Background ..................................... 5
II. Factual Background......................................... 6
III. Proceedings Below ........................................... 7
A. District Court Proceedings .......................7
B. Sixth Circuit Appeal .................................9
C. Petition for Rehearing En Banc .............12
REASONS FOR GRANTING THE PETITION........13
I.
The Court already has agreed to
consider the legal issue presented by
this Petition ................................................... 13
II. The Sixth Circuit’s decision conflicts
with the view of every other circuit that
has considered whether the Clean
Water Act may protect navigable waters
iv
from pollutants added from a point
source via groundwater ................................. 14
III. The Sixth Circuit’s new bright-line
exemption is not supported by the text
and structure of the Clean Water Act ........... 17
IV. The Sixth Circuit’s decision undoes a
long-standing statutory scheme .................... 19
A. Since the Clean Water Act’s
inception, EPA has recognized that
the Act protects navigable waters
from indirect but traceable
pollution that travels via
groundwater ............................................20
B. Protecting navigable waters from
pollutants conveyed through
groundwater under the Clean
Water Act does not conflict with
the Resource Conservation and
Recovery Act............................................22
CONCLUSION ..........................................................26
APPENDIX
Appendix A: Opinion of the United States Court of
Appeals for the Sixth Circuit, Tenn. Clean Water
Network et al. v. Tenn. Valley Auth., 905 F.3d 436
(6th Cir. 2018)………………………………………...…1a
Appendix B: Final Order, Tenn. Clean Water
Network et al. v. Tenn. Valley Auth., No. 3:15-cv00424 (M.D. Tenn. Aug. 4, 2017)………….......……46a
v
Appendix C: Findings of Fact and Conclusions of
Law, Tenn. Clean Water Network et al. v. Tenn.
Valley Auth., 273 F.Supp.3d 775
(M.D. Tenn. 2017)…..…………………………….…..48a
Appendix D: Order Granting and Denying Parties’
Dispositive Motions, Tenn. Clean Water Network et
al. v. Tenn. Valley Auth., No. 3:15-cv-00424 (M.D.
Tenn. Sept. 9, 2016)……...…………..….................210a
Appendix E: Memorandum Opinion, Tenn. Clean
Water Network et al. v. Tenn. Valley Auth., 206
F.Supp.3d 1280 (M.D. Tenn. 2016)….………........212a
Appendix F: Order of the United States Court of
Appeals for the Sixth Circuit Denying Rehearing En
Banc, Tenn. Clean Water Network et al. v. Tenn.
Valley Auth., No. 17-6155, 2019 WL 244730
(6th Cir. Jan. 17, 2019)..……………………........…264a
Appendix G: Relevant Statutory Provisions
33 U.S.C. § 1251………………………...….291a
33 U.S.C. § 1311………………………...….294a
33 U.S.C. § 1362………………………...….326a
33 U.S.C. § 1365………………………...….333a
vi
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Cty. of Maui v. Haw. Wildlife Fund,
No. 18-260 (U.S. filed Aug. 27, 2018) .......... passim
Ecological Rights Found. v. Pac. Gas &
Elec. Co.,
874 F.3d 1083 (9th Cir. 2017) ............................. 24
Goldfarb v. Mayor of Baltimore,
791 F.3d 500 (4th Cir. 2015) ............................... 24
Greater Yellowstone Coal. v. Larson,
641 F. Supp. 2d 1120 (D. Idaho 2009) ................ 19
Haw. Wildlife Fund v. Cty. Of Maui,
886 F.3d 737 (9th Cir. 2018) ....................14, 15, 17
Quivira Mining Co. v. Envtl. Prot. Agency,
765 F.2d 126 (10th Cir. 1985) ............................. 16
Rapanos v. United States,
547 U.S. 715 (2006) ..................................11, 15, 16
Rice v. Harken Exploration Company,
250 F.3d 264 (5th Cir. 2001) ............................... 17
U.S. Steel Corp. v. Train,
556 F.2d 822 (7th Cir. 1977) ....................16, 18, 20
United States v. Dean,
969 F.2d 187 (6th Cir. 1992) ..........................12, 25
vii
United States v. Earth Scis., Inc.,
599 F.2d 368 (10th Cir. 1979) ............................... 5
Upstate Forever v. Kinder Morgan Energy
Partners, L.P.,
887 F.3d 637 (4th Cir. 2018) ..........................15, 17
Util. Solid Waste Activities Grp. v. Envtl.
Prot. Agency,
901 F.3d 414 (D.C. Cir. 2018) ............................... 6
Village of Oconomowoc Lake v. Dayton
Hudson Corporation,
24 F.3d 962 (7th Cir. 1994) ................................. 17
Waterkeeper All., Inc. v. Envtl. Prot. Agency,
399 F.3d 486 (2d Cir. 2005)................................. 16
Federal Statutes
28 U.S.C. § 1254(1) ..................................................... 3
33 U.S.C. § 1251 ..................................................... 3, 5
33 U.S.C. § 1311(a) ............................................ passim
33 U.S.C. § 1362(11) ................................................. 17
33 U.S.C. § 1362(12) .......................................... passim
33 U.S.C. § 1362(14) ..........................................4, 5, 18
33 U.S.C. § 1365 ................................................ passim
42 U.S.C. §§ 300f–300j-27 ........................................ 19
42 U.S.C. §§ 6901–6992k .......................................... 10
viii
42 U.S.C. § 6903(27) ................................................. 23
42 U.S.C. § 6905(a) ................................................... 23
Administrative Materials
40 C.F.R. § 257.3-3(a) ............................................... 25
40 C.F.R. § 257.52(b) ................................................ 25
40 C.F.R. § 257.53 ..................................................... 25
40 C.F.R. § 261.4(a)(2) cmt ....................................... 23
Envtl. Prot. Agency, Clean Water Act
Coverage of “Discharges of Pollutants”
via Direct Hydrologic Connection to
Surface Water, Request for Comment,
83 Fed. Reg. 7,126 (Feb. 20, 2018) ...................... 21
Envtl. Prot. Agency, National Pollutant
Discharge Elimination System Permit
Regulation and Effluent Limitations
Guidelines and Standards for
Concentrated Animal Feeding
Operations, 66 Fed. Reg. 2,960 (Jan. 12,
2001) .................................................................... 22
Legislative Materials
H. Rep. No. 93-1185 (1974) ...................................... 19
ix
Other Materials
Brief of United States as Amicus Curiae,
Cty. of Maui v. Haw. Wildlife Fund,
No. 18-260 and Kinder Morgan Energy
Partners, L.P. v. Upstate Forever, No. 18268 (U.S. Jan. 3, 2019) .............................14, 17, 21
Envtl. Prot. Agency Region 6, National
Pollutant Discharge Elimination System
(NPDES) General Permit for
Concentrated Animal Feeding
Operations (CAFOs) in New Mexico
(Sept. 1, 2016) ...................................................... 21
Memorandum from Michael A. Shapiro &
Lisa Friedman, Envtl. Prot. Agency
Office of Solid Waste, Interpretation of
Industrial Wastewater Discharge
Exclusion from the Definition of Solid
Waste (Feb. 17, 1995) .......................................... 24
Petition for Writ of Certiorari, Cty. of Maui
v. Haw. Wildlife Fund, No. 18-260 (U.S.
Aug. 27, 2018) ...................................................... 13
Supplemental Brief for Petitioners, Cty. of
Maui v. Haw. Wildlife Fund, No. 18-260
(U.S. Jan. 7, 2019) ............................................... 14
1
PETITION FOR WRIT OF CERTIORARI
Like Maui, this case illustrates the loophole that
would be created in the Clean Water Act if any
conveyance through groundwater conduits were
sufficient to eliminate—as a matter of law—the Act’s
long-accepted jurisdiction over sources of pollutants
that enter navigable waters indirectly, but traceably.
This Petition asks the Court to preserve the existing
scope of the Clean Water Act, as set out in the
statutory text and implemented for decades.
To handle the large quantities of ash produced by
burning coal at the Gallatin Fossil Plant (Plant), the
Tennessee Valley Authority (TVA) built a system of
coal ash treatment ponds immediately next to the
Cumberland River on karst terrain it knew was
riddled with sinkholes and over a “sinking creek,” an
apparent former tributary to the Cumberland River.
App. 69a–70a, 188a. For the first seven years that
the current treatment system, the Ash Pond
Complex (Complex), was operating, TVA discharged
approximately 27 billion gallons of wastewater and
coal ash into the river through groundwater conduits
in the karst terrain. App. 141a–142a, 189a. TVA’s
own engineers voiced concerns about karst fissures
and sinkholes to TVA management in the 1970s, but
TVA never fully repaired them. App. 73a, 183a,
188a–190a. With full knowledge that the Complex is
discharging coal ash pollutants into the river via
groundwater conduits, TVA continued to dump coal
ash into the Complex, and the Complex continues to
discharge coal ash pollutants into the Cumberland
River. App. 183a.
2
Tennessee Clean Water Network and Tennessee
Scenic Rivers Association (the Conservation Groups)
brought this citizen suit to enforce the Clean Water
Act’s prohibition on unpermitted discharges. The
district court held that plaintiffs may prove a
violation of this provision when a pollutant reaches
navigable waters through groundwater, and found
that the Conservation Groups had proven it here.
App. 154a–160a, 179a–194a.
The Sixth Circuit did not dispute the district
court’s extensive factual findings supporting liability
in this case. App. 27–28a. Instead, the Sixth Circuit
created a new bright-line exemption barring all
Clean Water Act claims alleging discharges through
groundwater. App. 24a. This bright-line exemption
disturbs a long-standing judicial approach—recently
followed by the Fourth and Ninth Circuits—that
applies the plain text of the statute to the specific
facts alleged to determine whether an unlawful
discharge of a pollutant is occurring.
Next Term in Maui, the Court will consider
whether a “discharge of a pollutant,” 33 U.S.C.
§ 1362(12), may occur when a pollutant is discharged
from a point source, travels through groundwater,
and enters navigable waters.
The Conservation Groups respectfully request
that the Court either grant certiorari to hear this
case or hold this Petition pending resolution of Maui.
If the Court elects to hold this Petition, after the
Court’s final ruling in Maui, this Petition should
then be set for plenary review, or alternatively, the
3
Court should grant the Petition, vacate the judgment
below, and remand for further proceedings.
OPINIONS BELOW
The Sixth Circuit’s order denying rehearing en
banc and the dissent from denial are reported at 913
F.3d 592 and reproduced at App. 264a–290a. The
Sixth Circuit’s opinion and dissent are reported at
905 F.3d 436 and reproduced at App. 1a–45a. The
district court’s order directing judgment is
unreported but is available at No. 3:15-CV-00424,
2017 WL 6462543 and reproduced at App. 46a–47a.
The district court’s findings of fact and conclusions of
law are reported at 273 F.Supp.3d 775 and
reproduced at App. 48a–209a. The district court’s
order on the parties’ dispositive motions is
unreported and reproduced at App. 210a–211a. The
district court’s memorandum opinion on the parties’
dispositive motions is reported at 206 F.Supp.3d
1280 and reproduced at App. 212a–263a.
JURISDICTION
The Sixth Circuit issued its 2-1 panel decision on
September 24, 2018, and denied rehearing en banc
on January 17, 2019, by a divided vote. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The statutory provisions excerpted below are
reproduced in their entirety at App. 291a–336a.
33 U.S.C. § 1251(a): The objective of this chapter is to
restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.
4
33 U.S.C. § 1311(a): Except as in compliance with
this section and sections 1312, 1316, 1317, 1328,
1342, and 1344 of this title, the discharge of any
pollutant by any person shall be unlawful.
33 U.S.C. § 1362(12): The term “discharge of a
pollutant” and the term “discharge of pollutants”
each means (A) any addition of any pollutant to
navigable waters from any point source. . . .
33 U.S.C. § 1362(14): The term “point source” means
any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation,
or vessel or other floating craft, from which
pollutants are or may be discharged. This term does
not include agricultural stormwater discharges and
return flows from irrigated agriculture.
33 U.S.C. § 1365(a): Except as provided in subsection
(b) of this section and section 1319(g)(6) of this title,
any citizen may commence a civil action on his own
behalf-(1) against any person (including (i) the United
States, and (ii) any other governmental
instrumentality or agency to the extent
permitted by the eleventh amendment to the
Constitution) who is alleged to be in violation of
(A) an effluent standard or limitation under this
chapter. . . .
33 U.S.C. § 1365(f): For purposes of this section, the
term “effluent standard or limitation under this
5
chapter” means (1) effective July 1, 1973, an
unlawful act under subsection (a) of section 1311 of
this title. . . .
STATEMENT OF THE CASE
The jurisdiction of the district court was invoked
under the citizen suit provision of the Clean Water
Act, 33 U.S.C. § 1365, presenting a federal question
under 28 U.S.C. § 1331.
I.
Statutory Background
The object of the Clean Water Act is to eliminate
the discharge of pollutants into navigable waters to
“restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251. To achieve this goal, Congress forbade “the
discharge of any pollutant by any person” without a
permit. Id. § 1311(a). “[D]ischarge of a pollutant”
means “any addition of any pollutant to navigable
waters from any point source.” Id. § 1362(12).
A “point source” is “any discernible, confined and
discrete conveyance . . . from which pollutants are or
may be discharged.” Id. § 1362(14). Congress
“embrac[ed] the broadest possible definition” for
point sources. United States v. Earth Scis., Inc., 599
F.2d 368, 373 (10th Cir. 1979). The statute
enumerates several examples, including any “well,”
“container,” “concentrated animal feeding operation,”
and “rolling stock,” 33 U.S.C. § 1362(14)—none of
which is the ultimate means by which pollutants
reach navigable waters. For example, pollutants
must travel through some other medium in order to
make it from a “well” or “rolling stock” to a navigable
water.
6
Congress empowered citizens to enforce the Clean
Water Act against any person “alleged to be in
violation of . . . an effluent standard or limitation
under this chapter.” Id. § 1365(a)(1)(A). For purposes
of citizen enforcement, an “effluent standard or
limitation” includes “an unlawful act under
subsection (a) of section 1311 of this title.” Id. §
1365(f).
II.
Factual Background
Coal ash contains “myriad carcinogens and
neurotoxins,” Util. Solid Waste Activities Grp. v.
Envtl. Prot. Agency, 901 F.3d 414, 420 (D.C. Cir.
2018), including arsenic, lead, boron, chromium,
selenium, mercury, and thallium. See id. at 421.
Burning coal does not generate wastewater but
only dry ash. However, since the Plant began
operation in 1956, App. 57a, TVA has mixed its coal
ash waste with water, thereby creating a wastewater
mix, and sluiced it to unlined impoundments, which
allow the previously dry coal ash solids to settle
before wastewater is discharged through an
authorized outfall structure into the Cumberland
River. App. 214a–215a, 57a–58a, 94a, 196a.
The Plant occupies Odom’s Bend Peninsula,
which is surrounded on three sides by the
Cumberland River, App. 56a–57a, a navigable water
of the United States. App. 180a. The Peninsula is
made of layers of limestone, significant parts of
which have been dissolved by water over time to
create “karst” conditions characterized by sinkholes,
fissures, and conduits. App. 57a, 65a–67a, 189a–
190a. The resultant “voids” or “tubular tunnels”
7
caused by eons of subsurface erosion provide
pathways for rapid flows of coal ash and coal ash
pollutants dissolved in the groundwater to flow into
the Cumberland River. App. 65a–67a, 140a.
Until 1970, TVA sluiced its coal ash to a 65-acre
unlined impoundment on the western edge of the
Peninsula now known as the Non-Registered Site
(NRS). App. 57a.
Since 1970, TVA has accumulated coal ash waste
in a 389-acre unlined series of impoundments called
the Ash Pond Complex. App. 58a. When the Complex
opened in 1970, it could not retain coal ash
wastewater because so much of it leaked into the
river. App. 70a–72a, 187a–189a. Over nearly a
decade, TVA allowed billions of gallons of coal ash
wastewater to flow into the river through karst
features
before
it
partially
repaired
the
impoundments. App. 70a–72a, 141a–142a, 189a.
III. Proceedings Below
A.
District Court Proceedings
In November 2014, pursuant to 33 U.S.C. § 1365,
the Conservation Groups notified TVA, the U.S.
Environmental
Protection
Agency,
and
the
Tennessee Department of Environment and
Conservation of their intent to sue TVA for violations
of the Clean Water Act. App. 60a–61a.1 As is relevant
1 In January 2015, the State of Tennessee filed an enforcement
action in state court against TVA under the Tennessee Solid
Waste Disposal Act and the Tennessee Water Quality Control
Act “in response” to the Conservation Groups’ Clean Water Act
8
here, the Conservation Groups alleged that TVA is
violating the Clean Water Act by discharging coal
ash pollutants from the NRS and Complex into the
Cumberland River without a permit.
In April 2015, the Conservation Groups filed this
case in the U.S. District Court for the Middle District
of Tennessee. App. 61a. After the district court ruled
on a series of dispositive motions,2 the Conservation
Groups proceeded to trial on two Clean Water Act
claims alleging two types of unlawful discharges
under § 1311(a): (1) the unpermitted discharge of
pollutants into the Cumberland River from the NRS;
and (2) the unpermitted discharge of pollutants from
the Complex to the Cumberland River through
faster-moving karst conduits, not soil seepage alone.
App. 49a–50a, 179a, 231a–232a.
In August 2017, the district court filed 123 pages
of findings of fact and conclusions of law and entered
judgment against TVA, concluding that TVA is
violating the Clean Water Act. App. 182a, 196a. The
district court followed the lead of courts that have
understood the issue presented by 33 U.S.C. §§
1311(a) and 1362(12)(A) as not whether the Clean
Water Act regulates the discharge of pollutants from
a point source “into groundwater itself,” but “to
notice. App. 221a–222a. The Conservation Groups intervened in
the state action, App. 222a, which remains pending.
2 In these motions, TVA argued, among other things, that the
Clean Water Act’s “diligent prosecution” provision, 33 U.S.C. §
1365(b)(l)(B), required dismissal of the Conservation Groups’
claims. App. 226a. The district court dismissed claims that
overlapped with claims being prosecuted in the state case. App.
236a, 210a–211a.
9
navigable waters via groundwater.” App. 157a–158a,
160a. Consequently, the district court endorsed the
conclusion that a cause of action may be brought
under § 1311(a) “if the hydrologic connection between
the source of the pollutants and navigable waters is
direct, immediate, and can generally be traced.” App.
159a–160a.
The district court concluded that both the NRS
and Complex convey pollutants into the river in a
direct and traceable manner: (1) the NRS continues
to leak coal ash waste into the Cumberland River,
App. 182a; and (2) the Complex is adding coal ash
pollutants through karst features into the
Cumberland River. App. 183a–184a, 187a–191a.
Further, “the Ash Pond Complex is situated directly
next to the shores of that river, arguably even on top
of one of its former tributaries,” making the polluted
water’s path “simple, clear, and direct.” App. 194a–
195a.3
Based on its factual findings, the district court
found that the Conservation Groups had established
an ongoing violation of the Clean Water Act at both
the NRS and the Complex. App. 182a, 196a.
B.
Sixth Circuit Appeal
TVA appealed. A divided panel of the Sixth
Circuit reversed the district court’s judgment that
TVA is violating the Clean Water Act. The majority
The district court also looked to the statutory definition of
“point sources” to conclude that the NRS and Complex met the
test, given that the pollution had been “collected or channelled
by man.” App. 162a–169a.
3
10
held that the Clean Water Act “has no say” over
TVA’s addition of coal ash pollutants to the
Cumberland River for the sole reason that those
pollutants travel a short distance through
groundwater before entering the river. App. 19a. The
majority acknowledged that the “discharge of a
pollutant,” defined as “any addition of any pollutant
to navigable waters from any point source,” 33 U.S.C.
§ 1362(12)(A), does not contain the word “directly.”
App. 19a–20a. Nevertheless, the majority asserted,
the “[Clean Water Act’s] text” demands that a
discharge be direct, because a separate term,
“effluent limitation,” defines restrictions on
permitted discharges “from point sources into
navigable waters.” App. 18a (quoting 33 U.S.C. §
1362(11)). The majority reasoned that “[t]he term
‘into’ indicates directness,” App. 18a, and therefore, a
point source “must dump directly into those
navigable waters” for the Clean Water Act to cover
the discharge. App. 18a–19a.
The majority also expressed concern that
prohibiting pollution that travels via groundwater to
surface water under the Clean Water Act “would
disrupt the existing regulatory framework,” because
it would “remove coal ash treatment and storage
practices from” coverage under the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. §§
6901–6992k. App. 22a.
Judge Clay dissented. Rejecting the majority’s
holding that a plaintiff “may never—as a matter of
law—prove that a defendant has unlawfully added
pollutants to navigable waterways via groundwater,”
App. 34a, the dissent would have joined the Fourth
11
and Ninth Circuits and allowed cases alleging these
types of discharges to “be decided on their facts.” Id.
The dissent found no support for the majority’s
bright-line exemption in either the text or the history
of the Clean Water Act. App. 28a; see also App. 30a
(“[T]he [Clean Water Act] does not require a plaintiff
to show that a defendant discharged a pollutant from
a point source directly into navigable waters. . . .”)
(citing 33 U.S.C. § 1362(12)(A)). The dissent observed
that in both the plurality opinion in Rapanos v.
United States, 547 U.S. 715, 743 (2006) (plurality
opinion) (Scalia, J.), and in this case, “[T]he legal
issue is the same: whether the [Clean Water Act]
applies to pollution that travels from a point source
to navigable waters through a complex pathway.”
App. 37a. In Rapanos, the plurality “made clear that
the [Clean Water Act] applies to indirect pollution,”
App. 37a, and “no Justice challenged this aspect of
the opinion.” App. 31a.
The dissent further observed that the citizen-suit
provision authorizes citizens to enforce an “effluent
standard or limitation,” which is a “term of art”
defined to include the prohibition on the “discharge
of a pollutant,” and the relevant text in 33 U.S.C.
§ 1362(12)(A). App. 35a–36a. For this reason, the
definition of “effluent limitation” relied on by the
panel “is simply irrelevant to this lawsuit.” App. 36a.
In any case, the dissent reasoned, “Congress did not
hide a massive regulatory loophole in its use of the
word ‘into.’” App. 35a.
The dissent found that the Clean Water Act and
RCRA play distinct and complementary roles in
12
limiting TVA’s coal ash pollution. Citing the longstanding interpretation of the U.S. Environmental
Protection Agency, the dissent explained that “RCRA
regulates the way polluters store [coal ash
pollutants], and the [Clean Water Act] kicks in the
moment [coal ash pollutants] enter[] a navigable
waterway.” App. 39a.
C.
Petition for Rehearing En Banc
The Conservation Groups sought rehearing en
banc, which was denied by a sharply divided court.
App. 264a–266a. Judge Clay would have granted
rehearing for the reasons stated in his dissent. Judge
Stranch delivered a separate dissenting opinion,
joined by five other judges.
The en banc dissent was unpersuaded by the
panel majority’s textual analysis, which “relies on a
single preposition that is not found in the [Clean
Water Act] provision at issue.” App. 266a. Even if the
term “into” were relevant, the dissent explained,
“Pollutants are discharged from coal ash ponds into
navigable waters just as a rocket is launched from
the ground into space or a path leads from a city into
a forest—inevitably, but not immediately.” App.
269a.
The en banc dissent was also unconvinced by the
panel majority’s analysis of a potential conflict
between the Clean Water Act and RCRA. Applying
the distinction drawn in United States v. Dean, 969
F.2d 187, 194 (6th Cir. 1992), the dissent explained
that “‘Actual discharges’ from the ponds to surface
waters are governed by the [Clean Water Act], and
everything else—from the strength of the
13
embankment surrounding a pond to the frequency of
its inspections and the design of its liner—is
governed by RCRA.” App. 269a. The dissent doubted
“the feasibility of using a statute designed to govern
solid waste to regulate pollution of rivers,” App.
272a, and was “even less confident that existing
environmental law can fill the new loopholes created
now that a polluter can escape liability under the
[Clean Water Act] ‘by moving its drainage pipes a
few feet from the river bank.’” Id. (quoting Clay, J.,
dissenting).
REASONS FOR GRANTING THE PETITION
I. The Court already has agreed to
consider the legal issue presented by
this Petition.
This case presents the same question of statutory
interpretation as the petition in Maui, for which this
Court has granted plenary review. As formulated by
the petitioners in Maui:
Whether the [Clean Water Act] requires a
permit when pollutants originate from a point
source but are conveyed to navigable waters
by a nonpoint source, such as groundwater.
Petition for Writ of Certiorari at i, Maui, No. 18-260
(U.S. Aug. 27, 2018). In Maui, both the petitioner
and the Solicitor General cited the Sixth Circuit
opinion in this case as creating the disagreement
among the circuits necessary to warrant review.
Supplemental Brief for Petitioners at 2, Maui, No.
18-260 (U.S. Jan. 7, 2019); Brief of United States as
Amicus Curiae at 11, Maui, No. 18-260 and Kinder
14
Morgan Energy Partners, L.P. v. Upstate Forever, No.
18-268 (U.S. Jan. 3, 2019).
Because this Court already has determined that
the question raised by this Petition warrants review,
the Court should either grant certiorari to hear this
case or hold this Petition pending the decision in
Maui.
II.
The Sixth Circuit’s decision conflicts with
the view of every other circuit that has
considered whether the Clean Water Act
may protect navigable waters from
pollutants added from a point source via
groundwater.
The Sixth Circuit held as a matter of law that the
Clean Water Act forecloses the claim alleged and
proven by the Conservation Groups. See App. 24a
(“[T]he district court erred in adopting Plaintiffs’
theory that the [Clean Water Act] prohibits
discharges of pollutants through groundwater that is
hydrologically connected to navigable waters.”).
The Sixth Circuit’s decision departs from decades
of precedent affirming liability under the Clean
Water Act for pollution that reaches navigable
waters indirectly, through groundwater or otherwise.
Most recently, the Ninth and Fourth Circuits
reaffirmed this principle in cases addressing
pollution from point sources that reached navigable
waters through groundwater. In Hawai’i Wildlife
Fund v. County Of Maui, a unanimous panel of the
Ninth Circuit held that the Act forbids the
unpermitted discharge of pollutants traveling from
injection wells a short distance through groundwater
15
to the ocean. 886 F.3d 737, 746–49 (9th Cir. 2018),
cert. granted, 87 U.S.L.W. 3319 (U.S. Feb. 19, 2019)
(No. 18-260). Similarly, in Upstate Forever v. Kinder
Morgan Energy Partners, L.P., the Fourth Circuit
held that plaintiffs had sufficiently alleged a
violation of the Act where the unpermitted discharge
of pollutants travels a short distance from a pipe
through groundwater. 887 F.3d 637, 650–53 (4th Cir.
2018), petition for cert. filed, 87 U.S.L.W. 3069 (U.S.
Aug. 28, 2018) (No. 18-268).
Both the Ninth and Fourth Circuits grounded
their decisions in the plain language defining the
“discharge of a pollutant” in § 1362(12)(A). See Maui,
886 F.3d at 749 (rejecting an interpretation of the
Act that included “at least one critical term that does
not appear on its face—that the pollutants must be
discharged ‘directly’ to navigable waters from a point
source”); Upstate Forever, 887 F.3d at 650 (“The plain
language of the [Clean Water Act] requires only that
a discharge come ‘from’ a ‘point source.’”). The Ninth
and Fourth Circuits applied the text to the facts
before them and in each case held that plaintiffs
stated a claim.
Both the Ninth and Fourth Circuits also noted
that Justice Scalia’s plurality opinion in Rapanos,
547 U.S. at 743, supports their reading of the plain
language of a “discharge of a pollutant.” See Maui,
886 F.3d at 748–49 (citing Rapanos for its persuasive
value); Upstate Forever, 887 F.3d at 649–50 (noting
Justice Scalia’s statement). In Rapanos, Justice
Scalia explained that “[t]he Act does not forbid the
‘addition of any pollutant directly to navigable
waters from any point source,’ but rather the
16
‘addition of any pollutant to navigable waters.’” 547
U.S. at 743 (emphasis in original). As the dissent in
this case observed, “[N]o Justice challenged this
aspect of the opinion, and for good reason: the
statutory text unambiguously supports it.” App. 31a
(Clay, J., dissenting).
The decisions of the Fourth and Ninth Circuits
flow from a long line of cases affirming that the
Clean Water Act does not provide a blanket
exemption for discharges that reach surface waters
indirectly through groundwater. Until the Sixth
Circuit’s opinion in this case, every circuit court that
had considered the issue reached the same
conclusion. See Waterkeeper All., Inc. v. Envtl. Prot.
Agency, 399 F.3d 486, 514–15 (2d Cir. 2005)
(affirming EPA’s case-by-case approach to regulating
discharges through groundwater at concentrated
animal feeding operations); Quivira Mining Co. v.
Envtl. Prot. Agency, 765 F.2d 126, 129–30 (10th Cir.
1985) (upholding Clean Water Act coverage of flows
carrying pollutants “through underground aquifers . .
. into navigable-in-fact streams”); U.S. Steel Corp. v.
Train, 556 F.2d 822, 851–52 (7th Cir. 1977),
overruled on other grounds by City of West Chicago v.
U.S. Nuclear Regulatory Comm’n, 701 F.2d 632 (7th
Cir. 1983) (upholding Clean Water Act permitting
requirements for discharges through underground
injection wells). 4
4 Rice v. Harken Exploration Company, 250 F.3d 264, 269 (5th
Cir. 2001), and Village of Oconomowoc Lake v. Dayton Hudson
Corporation, 24 F.3d 962, 965 (7th Cir. 1994), held only that
groundwater itself is not a water of the United States—a point
which the Ninth Circuit assumed without deciding. See Maui,
17
Adopting a bright-line exemption to the contrary,
the Sixth Circuit decision put the courts of appeals
“squarely in conflict.” Brief for the United States as
Amicus Curiae at 11–12, Maui, No. 18-260 and
Kinder Morgan, No. 18-268 (U.S. Jan. 3, 2019).
III. The Sixth Circuit’s new bright-line
exemption is not supported by the text and
structure of the Clean Water Act.
Like the plaintiffs in Maui and Upstate Forever,
here the Conservation Groups sought to enforce the
Clean Water Act’s prohibition on unpermitted
discharges. In finding that the plaintiffs properly
alleged that claim, the Fourth and Ninth Circuits
focused on the definition of the activity the Act
prohibits without a permit: the “discharge of a
pollutant,” as defined in § 1362(12)(A). See Maui, 886
F.3d at 749 (analyzing the text of § 1362(a)); Upstate
Forever, 887 F.3d at 650 (same). In contrast, the
Sixth Circuit limited the prohibition on unpermitted
discharges based upon its interpretation of the
definition for “effluent limitation[s],” § 1362(11), a
different provision of the Act that applies only to
certain permitted discharges. App. 18–19a; see also
App. 37a (Clay, J., dissenting) (explaining why the
term “effluent limitation” is “irrelevant to this
lawsuit”).
Even if the term “effluent limitation” were
relevant, the use of the preposition “into” in its
definition does not bear the weight attributed to it by
886 F.3d at 745–46 n.2 (“We are not suggesting that the [Clean
Water Act] regulates all groundwater.”).
18
the Sixth Circuit. The Sixth Circuit emphasized that
the definition of “effluent limitation” places limits “on
the amount of pollutants that may be ‘discharged
from point sources into navigable waters.’” App. 18a
(quoting 33 U.S.C. § 1362(11)). According to the
Sixth Circuit, “the term ‘into’ indicates directness,”
and “leaves no room for intermediary mediums to
carry the pollutants.” App. 18a–19a. As the dissent to
the denial of rehearing en banc in this case observed,
however, “[T]he definitions cited by the majority
require only entry, not ‘direct’ entry.” App. 268a
(Stranch, J., dissenting).
Unlike the term “effluent limitation,” the term
“point source” appears in the text of § 1362(12) itself.
The definition of “point source” illustrates the broad
scope of the prohibition intended by Congress in §
1311(a). In particular, the statutory definition of
“point source” includes a “well.” 33 U.S.C. § 1362(14).
Pollutants discharged into groundwater through
injection wells, like those at issue in Maui, can only
reach surface waters through groundwater. See U.S.
Steel, 556 F.2d at 852 (concluding Clean Water Act
regulates ‘“pollutants’ when injected into wells” in
circumstances other than “‘production of oil or gas’”).
Congress’ confirmation that such wells can be point
sources reflects congressional intent that discharges
to surface waters through groundwater are regulated
by the Clean Water Act. In fact, when Congress
passed the Safe Drinking Water Act, 42 U.S.C. §§
300f–300j-27, in 1977, it recognized that the Clean
Water Act regulates discharges into deep water wells
when there is an associated “discharge into navigable
waters.” H. Rep. No. 93-1185, at 6457 (1974).
19
Applying the Clean Water Act to discharges
through groundwater conduits is neither unworkable
nor novel. It is well within courts’ fact-finding
capacity to determine whether “any addition of any
pollutant to navigable waters” originated “from any
point source.” 33 U.S.C. § 1362(12). See, e.g., Greater
Yellowstone Coal. v. Larson, 641 F. Supp. 2d 1120,
1139 (D. Idaho 2009), aff’d, 403 F. App’x 275 (9th Cir.
2010), aff’d sub nom. Greater Yellowstone Coal. v.
Lewis, 628 F.3d 1143 (9th Cir. 2010), as amended
(Jan. 25, 2011) (applying § 1362(12) to find no Clean
Water Act certification necessary where runoff could
take hundreds of years to move through four miles of
groundwater to surface water). See also App. 34a
(Clay, J., dissenting) (“[W]here, as here, a plaintiff
alleges that a defendant is polluting navigable
waters through a complex pathway, the court should
require the plaintiff to prove the existence of
pollutants in the navigable waters and to persuade
the factfinder that the defendant’s point source is to
blame. . . .”). As in Maui, that is precisely what the
district court did in this case. App. 159a–160a,
179a–196a.
IV. The Sixth Circuit’s decision undoes a longstanding statutory scheme.
The Sixth Circuit’s new bright-line exemption
allows “a polluter [to] escape liability under the
Clean Water Act . . . by moving its drainage pipes a
few feet from the riverbank.” App. 272a (Stranch, J.,
dissenting) (quoting Clay, J., dissenting). The
decision breaks with courts’ and regulators’ longstanding approach. In addition, the Sixth Circuit’s
concern that applying the Clean Water Act to
pollutants that travel via groundwater to navigable
20
waters would conflict with RCRA is unfounded. As
the courts of appeal (including the Sixth Circuit) and
EPA have recognized, Congress made clear in RCRA
that the Clean Water Act’s protection of navigable
waters takes precedence.
A.
Since the Clean Water Act’s inception,
EPA has recognized that the Act
protects navigable waters from
indirect but traceable pollution that
travels via groundwater.
For four decades, under administrations of both
parties, EPA has consistently recognized and
implemented the protection of navigable waters from
discharges of pollutants that flow into surface waters
covered by the Act via groundwater, reaching back to
EPA’s injection well permitting in the 1970s. See
U.S. Steel, 556 F.2d at 852 (“The statute authorizes
EPA to regulate the disposal of pollutants into deep
wells, at least when the regulation is undertaken in
conjunction with limitations on the permittee's
discharges into surface waters”). EPA recently
acknowledged its long-standing practice in a notice
in the Federal Register: “EPA has previously stated
that pollutants discharged from point sources that
reach jurisdictional surface waters via groundwater
or other subsurface flow that has a direct hydrologic
connection to the jurisdictional water may be subject
to [Clean Water Act] permitting requirements.”
Envtl. Prot. Agency, Clean Water Act Coverage of
“Discharges of Pollutants” via Direct Hydrologic
Connection to Surface Water, Request for Comment,
83 Fed. Reg. 7,126, 7,127 (Feb. 20, 2018); see id.
(collecting examples of EPA taking this position in
21
rulemaking, adjudication, and guidance documents).5
EPA further acknowledged that its application of the
Clean Water Act to indirect discharges has been
“fact-specific.” Id. at 7,128.
The
various
fact-specific
circumstances
warranting EPA’s protection of navigable waters
from discharges that travel, however briefly, through
groundwater highlight the regulatory disruption that
would result from the Sixth Circuit’s bright-line ban.
For example, EPA’s standard permit for concentrated
animal feeding operations (CAFOs) prohibits
discharges “to surface waters of the United States
through groundwater with a direct hydrologic
connection to surface waters.”6 EPA’s CAFO
rulemaking
summarized
its
longstanding
“jurisdictional determination” that the Act covers
such discharges, recognized that the “determination
of whether a discharge to ground water in a specific
case constitutes an illegal discharge to waters of the
U.S. if unpermitted is a fact specific one,” and
analogized it to other routine, fact-based
determinations under the Clean Water Act. Envtl.
Prot. Agency, National Pollutant Discharge
Elimination System Permit Regulation and Effluent
5 In its brief filed in support of the petition in Maui on January
3, 2019, the Solicitor General represented that EPA expects to
take further action on the request for comment “within the next
several weeks.” Brief of United States as Amicus Curiae at 14,
Maui, No. 18-260 and Kinder Morgan, No. 18-268 (U.S. Jan. 3,
2019). As of the date of filing of this Petition, the Conservation
Groups are unaware of EPA taking such action.
6 Envtl. Prot. Agency Region 6, National Pollutant Discharge
Elimination System (NPDES) General Permit for Concentrated
Animal Feeding Operations (CAFOs) in New Mexico
II.A.2(b)(vi) (Sept. 1, 2016).
22
Limitations
Guidelines
and
Standards
for
Concentrated Animal Feeding Operations, 66 Fed.
Reg. 2,960, 3,018 (Jan. 12, 2001).
Eschewing EPA’s long-standing interpretation
and implementation of the Act, the Sixth Circuit
decision throws into confusion permits issued across
the country to regulate discharges from point sources
that add pollutants to navigable waters indirectly
through groundwater, such as the CAFOs found by
EPA to warrant such regulation. The resulting
regulatory upheaval puts at risk the public health in
communities in the Sixth Circuit and across the
nation.
B.
Protecting navigable waters from
pollutants conveyed through
groundwater under the Clean Water
Act does not conflict with the
Resource Conservation and Recovery
Act.
Recognizing the “major environmental problem”
its decision leaves unaddressed, App. 27a, the Sixth
Circuit stated that “other environmental laws have
been enacted to remedy these concerns.” Id. The
court concluded that the Clean Water Act’s coverage
of discharges to surface water through groundwater
“would remove coal ash treatment and storage
practices from RCRA’s coverage,” in particular the
Coal Combustion Residuals Rule (CCR Rule)
regarding coal ash ponds that EPA issued under its
RCRA authority. App. 22a. The Sixth Circuit is
wrong.
23
RCRA governs the disposal of solid waste. By its
own terms, RCRA makes clear that if there is a
conflict between RCRA and the Clean Water Act, the
Clean Water Act takes precedence—not the other
way around. Congress expressly eliminated RCRA’s
applicability to activities subject to the Clean Water
Act, “except to the extent that such application (or
regulation) is not inconsistent with the requirements
of [the Clean Water Act].” 42 U.S.C. § 6905(a).
Congress further required EPA to “integrate”
RCRA with the Clean Water Act and to “avoid
duplication, to the maximum extent practicable. . . .”
Id. § 6905(b)(1). Toward that end, Congress
exempted “industrial discharges which are point
sources subject to permits under section 1342 of Title
33” from the definition of “solid waste” regulated by
RCRA. Id. § 6903(27).
To implement the statutory exclusion for
industrial discharges, EPA explained, “This
exclusion applies only to the actual point source
discharge. It does not exclude industrial wastewaters
while they are being collected, stored or treated
before discharge. . . .” 40 C.F.R. § 261.4(a)(2) cmt.
EPA has made clear that these statutory and
regulatory provisions mean what they say when
applied to pollution of navigable waters that travels
through groundwater. While generally “wastewater
releases to groundwater from treatment and holding
facilities. . . remain within the jurisdiction of RCRA,”
when groundwater carries pollution to navigable
waters, “discharges are subject to [Clean Water Act]
jurisdiction, based on EPA’s interpretation that
discharges from point sources through groundwater
24
where there is a direct hydrologic connection to
nearby surface waters of the United States are
subject to the prohibition against unpermitted
discharges” and “are subject to the NPDES
permitting requirements.”
Memorandum from
Michael A. Shapiro & Lisa Friedman, Envtl. Prot.
Agency Office of Solid Waste, Interpretation of
Industrial Wastewater Discharge Exclusion from the
Definition of Solid Waste (Feb. 17, 1995).
Accordingly, RCRA applies to the regulation of
the contents of wastewater treatment ponds, like
TVA’s ponds here. But the Clean Water Act protects
navigable waters from the unlawful discharge of
pollutants from the ponds.
Courts of appeal across the country have
acknowledged the primacy Congress afforded to the
Clean Water Act and the dividing line it drew in
application of the two statutes. See, e.g., Ecological
Rights Found. v. Pac. Gas & Elec. Co., 874 F.3d 1083,
1095 (9th Cir. 2017) (“RCRA’s anti-duplication
provision does not bar RCRA’s application unless
that application contradicts a specific mandate
imposed under the [Clean Water Act]”); Goldfarb v.
Mayor of Baltimore, 791 F.3d 500, 510 (4th Cir. 2015)
(noting that RCRA yields to the Clean Water Act
when regulation under both statutes would be
“‘incompatible,
incongruous,
inharmonious’”)
(quoting Webster’s Third Int’l Dictionary 1144); see
also Dean, 969 F.2d at 194 (“[I]t is only the actual
discharges from a holding pond or similar feature
into surface waters which are governed by the Clean
Water Act, not the contents of the pond or discharges
into it.”).
25
Similarly, the Sixth Circuit’s view that “the CCR
Rule, not the [Clean Water Act], is the framework
envisioned by Congress . . . to address the problem of
groundwater contamination caused by coal ash
impoundments,” App. 23a–24a, cannot rewrite the
plain terms of the Clean Water Act, RCRA, and the
CCR Rule itself. The CCR Rule, promulgated by
EPA pursuant to RCRA, expressly requires coal ash
ponds to comply with the Clean Water Act’s
prohibition on discharges of pollutants. See 40 C.F.R.
§ 257.52(b) (“Any . . . CCR surface impoundment . . .
continues to be subject to the requirements in . . .
§257.3-3”);7 id. § 257.3-3(a) (“For purposes of section
4004(a) of the Act, a facility shall not cause a
discharge of pollutants into waters of the United
States that is in violation of the requirements of the
National Pollutant Discharge Elimination System
(NPDES) under section 402 of the Clean Water Act,
as amended.”).
The Sixth Circuit’s conclusion that protecting
navigable waters from pollutants that travel via
groundwater would “disrupt the existing regulatory
framework,” App. 22a, cannot be squared with the
plain text of the Clean Water Act or RCRA, as well
as EPA’s regulations and permitting practice over
decades, and the interpretations of several courts of
appeals.
A CCR surface impoundment is defined as “a natural
topographic depression, man-made excavation, or diked area,
which is designed to hold an accumulation of CCR and liquids,
and the unit treats, stores, or disposes of CCR.” 40 C.F.R.
§ 257.53.
7
26
CONCLUSION
The Petition should be granted, or held pending
the Court’s disposition of County of Maui v. Hawai’i
Wildlife Fund, No. 18-260. If the Court elects to hold
this Petition, once Maui has been decided, the Court
should set this case for plenary review or grant the
Petition, vacate the decision below, and remand for
further proceedings.
Respectfully submitted,
Frank S. Holleman III
Counsel of Record
Nicholas S. Torrey
Leslie Griffith
SOUTHERN ENVIRONMENTAL
LAW CENTER
601 West Rosemary Street,
Suite 220
Chapel Hill, North Carolina
27516-2356
(919) 967-1450
fholleman@selcnc.org
Michael S. Kelley
KENNERLY,
MONTGOMERY &
FINLEY, P.C.
550 Main Street,
Fourth Floor
Knoxville, Tennessee
37902
(865) 546-7311
mkelley@kmfpc.com
Counsel for Tennessee
Clean Water Network
Amanda R. Garcia
Anne E. Passino
SOUTHERN ENVIRONMENTAL
LAW CENTER
1033 Demonbreun Street,
Suite 205
Nashville, Tennessee 37203
(615) 921-9470
Counsel for Tennessee Scenic
Rivers Association
April 15, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.