Petition for Writ of Certiorari — Tennessee Clean Water Network, et al., Petitioners v. Tennessee Valley Authority

APPENDIX

TABLE OF APPENDICES

Page

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

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

1a

RECOMMENDED FOR FULL-TEXT

PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0214p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________

TENNESSEE CLEAN WATER

NETWORK; TENNESSEE SCENIC

RIVERS ASSOCIATION,

Plaintiffs-Appellees,

v.

TENNESSEE VALLEY AUTHORITY,

Defendant-Appellant.

No. 17-6155

Appeal from the United States District Court for

the Middle District of Tennessee at Nashville.

No. 3:15-cv-00424 – Waverly D. Crenshaw Jr.,

District Judge.

Argued: August 2, 2018

Decided and Filed: September 24, 2018

Before SUHRHEINRICH, CLAY, and GIBBONS,

Circuit Judges.

________________

2a

COUNSEL

ARGUED: David D. Ayliffe, TENNESSEE

VALLEY AUTHORITY, Knoxville, Tennessee,

for Appellant. Frank S. Holleman, III,

SOUTHERN

ENVIRONMENTAL

LAW

CENTER, Chapel Hill, North Carolina, for

Appellees. ON BRIEF: David D. Ayliffe, James

S. Chase, F. Regina Koho, Lane E. McCarty,

TENNESSEE VALLEY AUTHORITY, Knoxville,

Tennessee, for Appellant. Frank S. Holleman,

III,

Nicholas

S.

Torrey,

SOUTHERN

ENVIRONMENTAL LAW CENTER, Chapel

Hill, North Carolina, Anne E. Passino,

SOUTHERN

ENVIRONMENTAL

LAW

CENTER, Nashville, Tennessee, Michael S.

Kelley,

Briton

S.

Collins,

KENNERLY,

MONTGOMERY & FINLEY, P.C., Knoxville,

Tennessee, Austin D. Gerken, Jr., SOUTHERN

ENVIRONMENTAL LAW CENTER, Asheville,

North Carolina, for Appellees. Douglas H. Green,

Margaret

K.

Fawal,

VENABLE

LLP,

Washington, D.C., Eric M. Palmer, OFFICE OF

THE ATTORNEY GENERAL OF ALABAMA,

Montgomery, Alabama, Carlos C. Smith, Larry

L. Cash, Mark W. Smith, MILLER & MARTIN

PLLC, Chattanooga, Tennessee, Robert F.

Parsley, M. Heith Frost, MILLER & MARTIN

PLLC, Chattanooga, Tennessee, Nash E. Long,

Brent A. Rosser, HUNTON & WILLIAMS LLP,

Charlotte, North Carolina, Elbert Lin, HUNTON

& WILLIAMS LLP, Richmond, Virginia, F.

William Brownell, HUNTON & WILLIAMS LLP,

Washington, D.C., Roger P. Sugarman, Scott M.

3a

Doran, William J. Levendusky, KEGLER

BROWN HILL + RITTER CO., LPA, Columbus,

Ohio, Reed W. Super, SUPER LAW GROUP,

LLC, New York, New York, Angela M. Garrone,

SOUTHERN

ALLIANCE

FOR

CLEAN

ENERGY, Knoxville, Tennessee, Emily B. Vann,

OFFICE OF THE ATTORNEY GENERAL OF

TENNESSEE, Nashville, Tennessee, Leah J.

Tulin, OFFICE OF THE ATTORNEY GENERAL

OF MARYLAND, Baltimore, Maryland, for Amici

Curiae.

SUHRHEINRICH, J., delivered the opinion

of the court in which GIBBONS, J., joined.

CLAY, J. (pp. 17–27), delivered a separate

dissenting opinion.

________________

OPINION

________________

SUHRHEINRICH, Circuit Judge.

*438 I. INTRODUCTION

Defendant Tennessee Valley Authority

(“TVA” or “Defendant”) operates a coal-fired

electricity-generating plant, the Gallatin Fossil

Plant (“Gallatin plant”), on a part of the

Cumberland River known as Old Hickory Lake, a

popular recreation spot. The Gallatin plant

generates wanted electricity (which it supplies to

approximately 565,000 households in the greater

Nashville area), as well as unwanted waste

byproducts, in particular coal combustion

4a

residuals (“CCRs”) or coal ash. The plant

disposes of the coal ash by “sluicing” (mixing

with lots of water) and allowing the coal ash

solids to settle in a series of unlined man-made

coal ash ponds adjacent to the river. The Gallatin

plant has a permit to discharge some of this coal

combustion wastewater, which contains heavy

metals and other pollutants, into the river

through a pipe, known as Outfall 001. Other

wastewater is allegedly discharged through leaks

from the ponds through the groundwater into the

Cumberland River, a waterway protected by the

Clean Water Act (“CWA”), 33 U.S.C. § 1251, et

seq. The CWA indisputably regulates the first

type of discharge. The issue on appeal is whether

the CWA also regulates the latter type of

discharge.

After a bench trial, the district court found

that TVA violated the CWA because its coal ash

ponds at the Gallatin plant leaks pollutants

through groundwater that is “hydrologically

connected” to the Cumberland River without a

permit. This theory of liability has been labeled

the “hydrological connection theory” by the

Federal Environmental Protection Agency

(“EPA”). As explained in the companion decision

also issued today, Kentucky Waterways All., v.

Kentucky Utilities Co., No. 18-5115, ––– F. 3d ––

––, 2018 WL 4559315 (6th Cir. 2018) (“Kentucky

Waterways”), we find no support for this theory

in either the text or the history of the CWA and

related environmental laws. We therefore hold

that the district court erred in granting relief

under the CWA.

5a

II. BACKGROUND

A. Statutory Background

Some background on the CWA is helpful. As

explained in Kentucky Waterways, Congress

passed the CWA in 1972 with the stated purpose

of “restor[ing] and maintain[ing] the ... Nation’s

waters.” 33 U.S.C. § 1251(a). To that end, the

CWA requires a permit to “discharge ... any

pollutant.” Id. §§ 1311(a), 1342(a). The discharge

of a pollutant is defined as “any addition of any

pollutant to navigable waters from any point

source.” Id. § 1362(12)(A). Navigable waters are

broadly defined as “the waters of the United

States.” Id. § 1362(7). And a point source is a

“discernible, confined and discrete conveyance.”

Id. § 1362(14). These permits are issued

pursuant to the CWA’s National Pollutant

Discharge Elimination System (“NPDES”). Id. §

1342. Therefore, in order to add a pollutant to

the waters of the United States via a conveyance,

an NPDES permit is required.

The CWA overhauled the 1948 Federal

Water Pollution Control Act and the Water

Quality Act of 1965 by shifting the focal point of

liability from measuring excess pollution levels

in the receiving water to capping effluent

limitations from a discharging source. See S.

Rep. No. 92-414 (1971), as reprinted in 1972

U.S.C.C.A.N. *439 3668, 3675 (“Under [the

CWA] the basis of pollution prevention and

elimination will be the application of effluent

limitations. Water quality will be a measure of

6a

program effectiveness and performance, not a

means of elimination and enforcement.... With

effluent limits, the [EPA] ... need not search for a

precise link between pollution and water

quality.”).

With the CWA, Congress also sought to

“recognize, preserve, and protect the primary

responsibilities and rights of States to prevent,

reduce, and eliminate pollution [and] to plan the

development and use ... of land and water

resources.” 33 U.S.C. § 1251(b). The CWA

accomplishes this by allowing the states to

administer the CWA’s NPDES permitting

program themselves, provided their regulations

are at least as stringent as the federal

limitations, id. § 1342(b)-(d), and most notably,

by drawing a line between point-source pollution

and

nonpoint-source

pollution,

id.

§

1362(12),(14). Point-source pollution is subject to

the NPDES requirements, and thus, to federal

regulation under the CWA. But all other forms of

pollution

are

considered

nonpoint-source

pollution and are within the states’ regulatory

domain. See id. §§ 1314(f), 1362(12); see also

Nat’l Wildlife Fed’n v. Consumers Power Co., 862

F.2d 580, 588 (6th Cir. 1988). Similarly, the

CWA is restricted to regulation of pollutants

discharged into navigable waters, id. § 1362(12),

leaving the states to regulate pollution of nonnavigable waters.

The EPA has the power under the CWA to

issue orders and to bring civil and criminal

actions against those in violation of its

7a

provisions. Id. § 1319(a)-(c). The CWA also allows

private citizens to file civil actions against

violators, provided they give the EPA, the

relevant state, and the alleged wrongdoer sixtydays’ notice prior to filing the lawsuit. Id. §

1365(a)-(b); see Sierra Club v. Hamilton Cty. Bd.

of Cty. Comm’rs, 504 F.3d 634, 637 (6th Cir.

2007) (noting private citizen suits “provide a

second level of enforcement” and serve as a check

on state and federal governments, who bear the

primary

enforcement

responsibility

for

prosecuting CWA violations).

We have held that a CWA claim has five

elements: “(1) a pollutant must be (2) added (3)

to navigable waters (4) from (5) a point source.”

Consumers Power Co., 862 F.2d 580 at 583

(quoting Nat’l Wildlife Fed’n v. Gorsuch, 693

F.2d 156, 165 (D.C. Cir. 1982) ).

B. Factual Background

As noted, the Gallatin plant is adjacent to

the Cumberland River, a “water[ ] of the United

States.” 33 U.S.C. § 1362(7). TVA has two coal

ash ponds or impoundments at the Gallatin

plant: the Non-Registered Site (“NRS”) and the

Ash Pond Complex (“Complex”). The NRS is

closed, and the Complex is in the process of being

closed.

1. The NRS

From 1956 to 1970, the Gallatin plant sluiced

CCRs to the NRS, an unlined 65-acre site along

the western edge of the river. The NRS is

situated atop alluvium (loose soil, silt, clay). By

8a

1973, TVA had dewatered the NRS. TVA closed

the NRS in 1998, pursuant to the State of

Tennessee’s solid waste program. For this reason

the NRS does not have an NPDES permit.

Instead,

the

Tennessee

Department

of

Environment

and

Conservation

(“TDEC”)

regulates the “closed dry ash disposal area”

according to its solid waste landfill standards,

which include ongoing groundwater monitoring.

See Tenn. Code Ann. § 68-211 et seq.

Approximately 2.3 million cubic yards of coal ash

are stored at the NRS.

Based on expert testimony from both sides,

the district court found that “it does *440 appear

more likely than not that some portions of [the

NRS as well as the Complex] penetrate the water

table.” The court concluded that the NRS is

contaminated; that it leaked historically; that

there was “no evidence to suggest that the

‘closure’ of the site ... wholly stopped the

leaking.”

2. The Complex

After 1970, TVA began treating its CCR in a

series of unlined ponds, collectively known as the

Complex. The ponds, which cover roughly 476

acres, treat sluiced wastewater by allowing CCRs

to settle before releasing wastewater to the

Cumberland River through Outfall 001.

Approximately 11.5 million cubic yards of coal

ash are stored at the Complex today. The parties

agree that the Complex sits atop karst terrain, a

landscape

characterized

by

underground

sinkholes, fissures, and caves caused by water-

9a

dissolving limestone. See 40 C.F.R. § 257.53.

Groundwater flows easily through the factures

and other conduits created by the dissolved rock.

Historically, the Complex leaked significant

amounts of pollutants into the river. Between

1970 and 1978, approximately 27 billion gallons

of coal ash wastewater flowed directly from the

Complex into the karst aquifer and then into the

Cumberland River. The district court found it

“beyond dispute that sinkholes have been

recently discovered in the area[ ] of the Gallatin

plant site” and would likely continue to form,

given the nature of karst terrain. Thus, the court

concluded that “[i]t is simply implausible, based

on the evidence before the Court, that the

Complex has not continued to, and will not

continue to, suffer at least some leaking through

karst features.”

3. The Permit

In 1976, the EPA issued an NPDES permit

authorizing the Gallatin plant to discharge

wastewater from the Complex to the

Cumberland River through Outfall 001. Today,

TDEC issues and oversees the federal permitting

process for the Gallatin plant.1

TDEC issued the permit in question (“Permit”)

on June 26, 2012,2 after a public comment

1 The EPA delegated its permitting authority to TDEC in

1986. TDEC issued its first NPDES permit to TVA for the

Gallatin plant, in 1993.

2 The Permit expired on May 31, 2017, and was

administratively continued until a new permit was issued.

10a

period. See 40 C.F.R. § 124.8 (requiring the EPA

or state authority to issue a fact sheet for every

draft permit setting forth “the principal facts and

the significant factual, legal, methodological and

policy questions considered in preparing the

draft permit”); Tenn. Comp. R. & Regs. 0400-4005-.06 (“Notice and Public Participation”). The

Permit establishes effluent limitations, as well as

monitoring and reporting requirements for

certain pollutants within the wastewater.

Two additional provisions of the Permit are

relevant to this lawsuit: (1) the “removedsubstances” provision, which prohibits “[s]ludge

or any other material removed by any treatment

works” from causing “pollution of any surface or

subsurface waters,” and (2) the “sanitary-sewer

overflow” provision, which prohibits the

“discharge to land or water of wastes from any

portion of the ... treatment system other than

through permitted outfalls.”

On August 21, 2014 (JX 248), and again on,

April 25, 2016 (JX 249, 250), TDEC deemed TVA

in compliance with the Permit.

*441 4. Procedural History

Plaintiffs, two Tennessee conservation

groups whose members use and enjoy Old

Hickory Lake, saw the matter differently.

Dissatisfied with the State of Tennessee’s

On May 1, 2018, TDEC issued a renewed NPDES Permit

for the Gallatin plant. It became effective June 1, 2018,

and is valid for five years.

11a

enforcement efforts, they brought this CWA

citizen suit on April 14, 2015, under to 33 U.S.C.

§ 1365, alleging that TVA violated the CWA and

the Permit based on flows from the NRS and the

Complex through hydrologically connected

groundwater to the Cumberland River.3

On August 4, 2017, the district court entered

judgment for Plaintiffs following a bench trial.

First, the court ruled as a matter of law that the

CWA applies to discharges of pollutants from a

point source through hydrologically connected

groundwater to navigable waters where the

connection is “direct, immediate, and can

generally be traced.” The district court held that

the NRS is a point source because it “channel[s]

the flow of pollutants ... by forming a discrete,

unlined concentration of coal ash,” and that the

Complex is also a point source because it is “a

series of discernible, confined, and discrete ponds

that receive wastewater, treat that wastewater,

On January 7, 2015, the State of Tennessee filed an

original enforcement action under applicable state

statutes, the Tennessee Solid Waste Disposal Act and the

Tennessee Water Quality Control Act, in state court. See

State of Tenn, et al. v. TVA, No. 15-0023-IV (Davidson Cty.

Chanc. Ct. Jan. 7, 2015). Plaintiffs intervened in that

action. The state action remains pending, although TVA

removed it to federal court in August 2017. See Slate ex rel.

Slatery v. TVA, No. 3:17-cv-01139, ECF No. 1 (M.D. Tenn.

Aug. 19, 2017).

In the present case the district court applied CWA’s

diligent prosecution bar, see 33 U.S.C. § 1365(b)(1)(B), and

limited the trial’s scope to the allegations it deemed nonoverlapping with the state enforcement action.

3

12a

and ultimately convey it to the Cumberland

River.”

The court then found as a matter of fact that

both the NRS and the Complex are

hydrologically connected to the Cumberland

River by groundwater. As to the NRS, the court

held that “[f]aced with an impoundment that has

leaked in the past and no evidence of any reason

that it would have stopped leaking, the Court

has no choice but to conclude that the [NRS] has

continued to and will continue to leak coal ash

waste into the Cumberland River, through

rainwater vertically penetrating the Site,

groundwater laterally penetrating the Site, or

both.”

The district court similarly found that

historical evidence established that the Complex

leaked. The court stated that “none of the science

presented was capable of definitively identifying

when the relevant pollutants entered the water,”

and that the record was “silent with regard to

detailed, credible evidence of whether the

undisputed historical leakage is capable of

justifying pollutant concentrations in the

amounts observed today.” However, the court

decided that “[o]n balance ... the evidence

preponderates toward concluding that the

discharges from the ... Complex are either

ongoing or intermittent and recurring.” The

court therefore held that “the unanimous expert

testimony is that sinkholes and other drainage

features in karst terrain are not mere relics of

some past geological event. Rather, the physical

13a

properties of the terrain itself make such areas

prone to the continued development of ever

newer sinkholes or other karst features.” Thus,

based on the contaminants flowing from the NRS

and the Complex, the court found TVA to be in

violation of the CWA. The district court further

concluded that karst-related leakage from the

Complex violated the Permit’s removedsubstances

and

sanitary-sewer

overflow

provisions.

*442 As a remedy the court ordered TVA to

“fully excavate” the coal ash in the Complex and

the NRS (13.8 million cubic yards in total) and

relocate it to a lined facility, rejecting TVA’s

proposal to dewater and put a cap on the unlined

impoundments (“closure-in-place”).4 Although

acknowledging that the burden of closure-byremoval “may be great,” the court felt that it was

“the only adequate resolution to an untenable

situation that has gone on for far too long.”

Because of the costs associated with the

injunctive remedy, the court did not assess civil

penalties against TVA.

TVA appeals, arguing that the district court

(1) erred in holding that the CWA’s prohibition of

Closure-in-place involves dewatering an impoundment

and capping it with a geosynthetic liner, borrow material,

soil, and vegetation to prevent water from flowing into and

through it. Closure-by-removal involves dewatering the

CCR, excavating it, drying it sufficiently to move it, and

then moving it to a permitted and lined landfill. A third

option, “on-site closure,” strikes a middle ground: it

requires removal to a lined impoundment at the same

location.

4

14a

unpermitted point source discharges applies to

pollutants that migrate through groundwater to

navigable waters; (2) lacked authority to override

the TDEC’s regulatory decision not to impose

NPDES liability for seepage and leakage of coal

ash leachate through groundwater at the

Gallatin plant in the Permit; and (3) abused its

discretion in ordering complete excavation and

relocation of the 13.8 million cubic yards of coal

ash stored at the Gallatin plant.

III. ANALYSIS

We review a district court’s decision to grant

a permanent injunction “under several distinct

standards.” S. Cent. Power Co. v. Int’l Bhd. of

Elec. Workers, Local Union 2359, 186 F.3d 733,

737 (6th Cir. 1999). “Factual findings are

reviewed under the clearly erroneous standard,

legal conclusions are reviewed de novo, and the

scope of injunctive relief is reviewed for abuse of

discretion.” Id. As always, review of statutory

construction is de novo. Bowling Green v. Martin

Land. Dev. Co., 561 F.3d 556, 558 (6th Cir.

2009).

A. Discharges from the NRS and the

Complex

TVA first challenges the district court’s

ruling “that a cause of action based on an

unauthorized point source discharge may be

brought under the CWA based on discharges

through

groundwater,

if

the

hydrologic

connection between the source of the pollutants

and navigable waters is direct, immediate, and

15a

can generally be traced.” TVA contends that the

district court impermissibly expanded CWA

liability beyond what Congress authorized, and

created an unnecessary conflict with regulation

of coal ash under the Resource Conservation and

Recovery Act, (“RCRA”), 42 U.S.C. § 6901 et seq.,

and the CCR Rule, promulgated under RCRA, 80

Fed. Reg. 21,302 (Apr. 17, 2015).

1. Text and Structure of the CWA

TVA claims that the text and structure of the

CWA demonstrate that the phrase “discharge of

pollutants” excludes the migration of pollutants

through groundwater. Plaintiffs maintain that

the district court correctly concluded that the

NRS and the Complex are point sources that add

coal ash pollutants to the Cumberland River

through groundwater with a direct hydrologic

connection to the Cumberland River.5 In finding

TVA in violation of the CWA, th e district court

made two legal conclusions: *443 first, that coal

ash ponds are “point sources”; and second, that

surface water pollution via hydrologically

connected groundwater is actionable under the

CWA. Because we conclude that the hydrological

connection theory is not a valid theory of

liability, we reverse the district court’s finding of

liability here.6

Unlike the plaintiffs in Kentucky Waterways, Plaintiffs

here do not argue that groundwater itself is a point source.

6 Although we do not base our decision today on TVA’s first

argument, we note that the Fourth Circuit recently held

that a landfill and settling pond did not serve as point

sources simply because they allowed arsenic from coal ash

to leach into groundwater and then to navigable waters.

5

16a

See Sierra Club v. Va. Elec. & Power Co., No. 17-1952, 903

F.3d 403, 2018 WL 4343513 (4th Cir. Sept. 12, 2018):

We conclude that while arsenic from the coal ash

stored on Dominion’s site was found to have reached

navigable waters—having been leached from the coal

ash by rainwater and groundwater and ultimately

carried by groundwater into navigable waters—that

simple causal link does not fulfill the Clean Water

Act’s requirement that the discharge be from a point

source. By its carefully defined terms, the Clean

Water Act limits its regulation under § 1311(a) to

discharges from “any discernible, confined and

discrete conveyance.” 33 U.S.C. § 1362(14) (emphasis

added). The definition includes, “but [is] not limited

to[,] any pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other floating

craft.” Id.; see also Consol. Coal Co. v. Costle, 604 F.2d

239, 249–50 (4th Cir. 1979), rev’d in part sub nom.

EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 101

S.Ct. 295, 66 L.Ed.2d 268 (1980) (finding that

“discharges which are pumped, siphoned or drained”

fall within the definition of discharges from a “point

source”); Appalachian Power v. Train, 545 F.2d 1351,

1373 (4th Cir. 1976) (concluding that “point source”

pollution does not include “unchanneled and

uncollected surface waters”). At its core, the Act’s

definition makes clear that some facility must be

involved that functions as a discrete, not generalized,

“conveyance.”

“Conveyance” is a well-understood term; it

requires a channel or medium—i.e., a facility—for the

movement of something from one place to another. See

Webster’s Third New International Dictionary 499

(1961); The American Heritage Dictionary of the

English Language 291–92 (1976); see also S. Fla.

Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541

U.S. 95, 105, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004)

(“[A] point source need not be the original source of

the pollutant; it need only convey the pollutant to

‘navigable waters’ ” (emphasis added) ). If no such

17a

As we explain in Kentucky Waterways,7

conveyance produces the discharge at issue, the

discharge would not be regulated by the Clean Water

Act, though it might be by the RCRA, which covers

and regulates the storage of solid waste, including

coal ash, and its effect on groundwater.

903 F.3d at 410–11, 2018 WL 4343513, at *5. The

court felt that

[t]his understanding of the Clean Water Act’s

point-source requirement is consistent with the larger

scheme of pollution regulation enacted by Congress.

In regulating discharges of pollutants from point

sources, Congress clearly intended to target the

measurable discharge of pollutants. Not only is this

revealed by the definitional text of “point source,” but

it is also manifested in the effluent limitation

enforcement scheme that the Clean Water Act

employs.

The

National

Pollutant

Discharge

Elimination System Program and § 1311’s

enforcement scheme specifically rely on “effluent

limitation[s]”—restrictions on the “quantities, rates,

and concentrations” of pollutants discharged into

navigable waters. 33 U.S.C. § 1362(11) (defining

“effluent limitation”). And state-federal permitting

programs under the Clean Water Act apply these

precise, numeric limitations to discrete outfalls and

other “point sources,” see [EPA v. California ex rel.

Res. Control Bd., 426 U.S. [200,] 205–08 [96 S.Ct.

2022, 48 L.Ed.2d 578] (1976), at which compliance can

be readily monitored. When a source works

affirmatively to convey a pollutant, the concentration

of the pollutant and the rate at which it is discharged

by that conveyance can be measured. But when the

alleged discharge is diffuse and not the product of a

discrete conveyance, that task is virtually impossible.

Id. 411, 2018 WL 4343513, at *6.

7 In Kentucky Waterways, the district court dismissed the

plaintiffs’ CWA claim, rejecting their argument that

pollution via hydrologically connected groundwater could

support CWA liability.

18a

*444 [t]he backbone of [the] argument in

favor of the hydrological connection

theory is that the relevant CWA provision

does not contain the word “directly.”

Because it only prohibits the discharge of

pollutants “to navigable waters from any

point source,” 33 U.S.C. § 1362(12)(A),

[proponents] argue that the CWA allows

for pollutants to travel from a point

source through nonpoint sources en route

to navigable waters. The CWA’s text

suggests otherwise.

First, the guidelines by which a CWAregulated party must abide—the heart of

the CWA’s regulatory power—are known

as “effluent limitations.” 33 U.S.C. §

1362(11); § 1314(b) These are caps on the

quantities of pollutants that may be

discharged from a point source and are

prescribed on an industry-by-industry

basis. See 33 U.S.C. § 1314(b). The CWA

defines effluent limitations as restrictions

on the amount of pollutants that may be

“discharged from point sources into

navigable waters.” Id. § 1362(11)

(emphasis added). The term “into”

indicates directness. It refers to a point of

entry. See Into, Webster’s Third New

International Dictionary, Unabridged.

2018. Web. 22 Aug. 2018. (“[E]ntry,

introduction, insertion.”); Into, Oxford

English Dictionary (2d ed. 1989)

(“Expressing motion to a position within a

space or thing: To point within the limits

of; to the interior of; so as to enter.”)

19a

(emphasis added). Thus, for a point source

to discharge into navigable waters, it

must dump directly into those navigable

waters—the phrase “into” leaves no room

for intermediary mediums to carry the

pollutants.

Moreover, the CWA addresses only

pollutants that are added “to navigable

waters from any point source.” 33 U.S.C.

§ 1362(12) (emphasis added). Accordingly,

the CWA requires two things in order for

pollution to qualify as a “discharge of a

pollutant”: (1) the pollutant must make

its way to a navigable water (2) by virtue

of a point-source conveyance.

Id. at ––––.

Like the defendant utility company in

Kentucky Waterways, TVA “is discharging

pollutants into the groundwater and the

groundwater is adding pollutants to” the

Cumberland River. Id. “But groundwater is not a

point source. Thus, when the pollutants are

discharged to the river, they are not coming from

a point source; they are coming from

groundwater which is a nonpoint-source

conveyance. The CWA has no say over that

conduct.” Id. For this reason, any alleged

leakages into the groundwater are not a violation

of the CWA.

Also similar to the plaintiffs in Kentucky

Waterways Alliance, Plaintiffs here rely on

Justice Scalia’s statement in Rapanos v. United

States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d

20a

159 (2006) that “[t]he [CWA] does not forbid the

‘addition of any pollutant directly to navigable

waters from any point source,’ but rather the

addition of any pollutant to navigable waters.’ ”

Id. at 743, 126 S.Ct. 2208 (plurality opinion)

(quoting 33 U.S.C. § 1362(12)(A) ). But, as we

discuss in Kentucky Waterways, that quote has

been taken out of context, and the courts and

litigants that rely on it in support of the

hydrological connection theory

have erred for a number of reasons. Not

the least of which is that Rapanos is not

binding here: it is a four-justice plurality

*445 opinion answering an entirely

different legal question. See id. at 739,

126 S.Ct. 2208 (concluding that certain

wetlands and intermittent streams did

not themselves fall within the CWA’s

definition of navigable waters). In any

event, when Justice Scalia pointed out the

absence of the word “directly” from §

1362(12)(A), he did so to explain that

pollutants which travel through multiple

point sources before discharging into

navigable waters are still covered by the

CWA. Id. at 743, 126 S.Ct. 2208 (“[T]he

discharge into intermittent channels of

any pollutant that naturally washes

downstream likely violates [the CWA],

even if the pollutants discharged from a

point source do not emit ‘directly into’

covered waters, but pass ‘through

conveyances’ in between. (emphasis

omitted) ). Justice Scalia’s reference to

“conveyances”—the CWA’s definition of a

21a

point source—reveals his true concern. He

sought to make clear that intermediary

point sources do not break the chain of

CWA liability; the opinion says nothing of

point-source-to-nonpoint-source dumping

like that at issue here. And the facts in

Rapanos confirm this to be true. The

three wetlands that the Supreme Court

defined out of the CWA in Rapanos were

all linked to navigable waters by multiple

different point sources (drains, ditches,

creeks, and the like). Id. at 729-30, 126

S.Ct. 2208. Thus, our holding today does

not stand in conflict with the Rapanos

plurality.

Ky. Waterways All., ––– F.3d ––––, No. 18-5115,

at ––––. We further concluded that the CWA’s

other provisions and corresponding federal

environmental laws strengthened this reading,

which brings us to TVA’s next argument—that

the district court’s hydrological connection

holding directly conflicts with RCRA and the

CCR Rule.

2. Statutory Context

Along with protecting the “Nation’s waters,”

the CWA also protects the primary rights and

responsibilities of the States to regulate

pollution. 33 U.S.C. § 1251(a), (b). Congress

specifically designed other environmental

statutes to partner with the CWA:

RCRA is designed to work in tandem with

other federal environmental protection

laws, including the CWA. See 42 U.S.C. §

6905(b) (“The [EPA] shall integrate all

22a

provisions of [RCRA] for purposes of

administration and enforcement and shall

avoid duplication, to the maximum extent

practicable,

with

the

appropriate

provisions of ... [the CWA].”). For that

reason, RCRA and the CWA should be

read as complementary statutes, each

addressed

at

regulating

different

potential environmental hazards. Cf.

Erlenbaugh v. United States, 409 U.S.

239, 243-44, 93 S.Ct. 477, 34 L.Ed.2d 446

(1972) (statutes that “pertain to the same

subject” may be treated “as if they were

one law,” because “whenever Congress

passes a new statute, it acts aware of all

previous statutes on the same subject”).

Ky. Waterways All., ––– F.3d ––––, No. 18-5115,

at ––––. Moreover, allowing the CWA to cover

pollution of this sort would disrupt the existing

regulatory framework. Because “RCRA explicitly

exempts from its coverage any pollution that is

subject to CWA regulation,” id., 42 U.S.C. § 6903

(27), reading the CWA in this way would remove

coal ash treatment and storage practices from

RCRA’s coverage. “But coal ash is solid waste,

and RCRA is specifically designed to cover solid

waste.” Id. Thus, the proposed CWA reading

would be “problematic.” Id.

Even “more problematic”

is the fact that, pursuant to RCRA, the

EPA has issued a formal rule that

specifically *446 covers coal ash storage

and treatment. See 80 Fed. Reg. 21,302

(Apr. 17, 2015) (the “CCR Rule”). The

23a

CCR Rule was designed to regulate,

among other things, coal ash ponds. Id. at

21,303. Yet because the EPA issued the

CCR Rule under RCRA, reading the CWA

to cover coal ash ponds would gut the

rule. Adopting Plaintiffs’ reading of the

CWA would mean that any coal ash pond

with a hydrological connection to a

navigable water would require an NPDES

permit, thus removing it from RCRA’s

coverage and with it, the CCR Rule.

Almost all coal ash ponds sit near

navigable waterways because of the large

amounts of water needed to operate coalfired power plants. As such, adopting

Plaintiffs’ interpretation of the CWA

would leave the CCR Rule virtually

useless. We decline to interpret the CWA

in a way that would effectively nullify the

CCR Rule and large portions of RCRA.

Id., ––– F.3d ––––, No. 18-5115, at –––– (citation

omitted).

The CCR Rule “specifically addresses the

‘disposal of coal [ash] as solid waste under

[RCRA].’ ” Id. at ––––, (quoting 80 Fed. Reg. at

21,302). The CCR Rule therefore “requires any

existing unlined CCR surface impoundment that

is contaminating groundwater above a regulated

constituent’s groundwater protection standard to

stop receiving CCR and either retrofit or close.”

Id. (quoting 80 Fed. Reg. at 21,302). The rule

also establishes minimum criteria for CCR

surface impoundments, requires groundwater

monitoring, and further demands corrective

24a

action

where

groundwater

contamination

exceeds accepted levels. Id. (citing 80 Fed. Reg.

at 21,396-408). In other words, the CCR Rule,

not the CWA, is the framework envisioned by

Congress (by delegating rulemaking authority to

the EPA through RCRA) to address the problem

of groundwater contamination caused by coal ash

impoundments.

For these reasons, we hold that the district

court erred in adopting Plaintiffs’ theory that the

CWA prohibits discharges of pollutants through

groundwater that is hydrologically connected to

navigable waters.

B. Removed-Substances and SanitarySewer Overflow Provisions

Because the district court also held that TVA

violated the CWA based on two other provisions

of the Permit, our inquiry is not yet at an end.

TVA challenges the district court’s holdings that

TVA violated the Permit’s removed-substances

and sanitary-sewer overflow provisions based on

Plaintiffs’

demonstration

of

unauthorized

discharges of coal ash from the Complex. NPDES

permits are interpreted like contracts. Piney Run

Pres. Ass’n v. Cty. Comm’rs of Carroll Cty., 268

F.3d 255, 269 (4th Cir. 2001).

1. Removed-Substances Provision

The removed-substances provision is found

in Part I of the Permit, which sets forth “Effluent

Limitations and Monitoring Requirements.” It

provides that “TVA Gallatin Fossil Plant is

authorized to discharge” enumerated pollutants

25a

“through Outfall 001,” including “ash transport

water” and “ash sluice water leakage.” These

discharges are “limited and monitored by the

permittee” according to specified “parameters,”

limitations

on

quantities,

rates,

and

concentrations of specified chemicals. Part I.A(c)

by its terms, is an “[a]dditional monitoring

requirement[ ] and condition[ ]applicable to

Outfalls 001, 002, and 004.” It states that

“[s]ludge 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.”

*447 Noting that some of the ash waste

produced as a result of the sluicing process

escapes to the Cumberland River, the district

court held simply that “Plaintiffs’ demonstration

of unauthorized discharges from the Ash Pond

Complex” established “a violation of the facial

terms of Part I.A(c).” But karst-related leaks are

not discharges from “Outfalls 001, 002, and 004.”

Thus, this provision simply does not apply, and

was therefore not violated by the conduct at

issue in this case.

2.

Sanitary-Sewer

Overflow

Provision

The sanitary-sewer overflow provision, found

in Part II of the Permit, prohibits “the discharge

to land or water of wastes from any portion of the

collection, transmission, or treatment system

other than through permitted outfalls.” The

district court held that, “[a]s with [the removedsubstances provision], this allegation is resolved

26a

by Plaintiffs’ demonstration that TVA improperly

discharged coal ash waste through leaks to the ...

Complex.”

But this provision also cannot be reasonably

read to cover karst-related leaks. While the

Permit does not define sewage, it treats it as a

distinct type of “Pollutant” distinct from

“industrial wastes, or other wastes.” See 33

U.S.C. § 1362(6) (defining “pollutant” as

including “sewage” as well as “chemical wastes”).

This distinction is consistent with the EPA

definition of sanitary-sewer overflow as involving

“[a]n untreated or partially treated sewage

release from a sanitary sewer system.” The

EPA’s NPDES Permit Writers’ Manual states

that “occasional, unintentional spills of raw

sewage from municipal sanitary sewers occur in

almost every system. Such types of releases are

called sanitary sewer overflows (SSOs).” The

district court, by treating coal ash wastewater as

a sanitary-sewer overflow, ignored the plain

meaning of sewage. Further, the Permit treats

these types of pollutants differently. Industrial

wastes like “discharge ash transport water” and

“ash sluice water leakage” are authorized with

limitations while “Sanitary Sewer Overflows are

prohibited.” Thus, karst-related leakage cannot

be a violation of this provision.

Because the plain language of these two

provisions does not apply to karst-related

discharges from the Complex, there is no

violation of the Permit. Neither provision

supports the district court’s injunction. Given

27a

this conclusion, we need not address TVA’s

arguments that that the collateral attack and

permit shield doctrines shield it from liability.

C. Injunctive Relief

Without CWA liability, the district court’s

injunction has no foundation. Its imposition was

therefore an abuse of discretion.

IV. CONCLUSION

As the district court rightly concluded, “an

unlined [coal] ash waste pond in karst terrain

immediately adjacent to a river” that leaks

pollutants into the groundwater is a major

environmental problem that the Permit does not

adequately address. But the CWA is not the

proper legal tool of correction. Fortunately, other

environmental laws have been enacted to remedy

these concerns. For these reasons, as well as

those articulated in Kentucky Waterways, we

REVERSE the judgment of the district court

imposing CWA liability on TVA.

28a

________________

DISSENT

________________

CLAY, Circuit Judge, dissenting. Can a polluter

escape liability under the Clean Water Act (“CWA”),

33 U.S.C. §§ 1251–1387, by moving its drainage

pipes a few feet from the riverbank? The *448 Fourth

and Ninth Circuits have said no. In two cases today,1

the majority says yes. Because the majority’s

conclusion is contrary to the plain text and history of

the CWA, and because I disagree with the majority’s

analysis of the permit’s Sanitary Sewer Overflow

provision, I respectfully dissent from the majority’s

position as to these issues.

I.

Scope of the Clean Water Act

Plaintiffs have invoked the CWA’s citizen-suit

provision, which provides that “any citizen may

commence a civil action ... against any person ... who

is alleged to be in violation of ... an effluent standard

or limitation under this chapter[.]” 33 U.S.C. §

1365(a). “For purposes of this section, the term

‘effluent standard or limitation under this chapter’

means,” among other possibilities, “an unlawful act

under subsection (a) of section 1311 of this title.” §

1365(f). In turn, § 1311(a) prohibits “the discharge of

any pollutant by any person[.]”

The other case is Case No. 18-5115, Kentucky Waterways

Alliance, et al. v. Kentucky Utilities Co.

1

29a

The broad sweep of a defendant’s potential CWA

liability is limited in two ways. First, Congress

included a list of exceptions in § 1311(a) itself: the

discharge of a pollutant is unlawful “[e]xcept in

compliance with this section and sections 1312, 1316,

1317, 1328, 1342, and 1344 of this title.” Second,

Congress gave the phrase “discharge of a pollutant” a

very specific definition: it means “any addition of any

pollutant to navigable waters from any point source.”

33 U.S.C. § 1362(12)(A). Taken together, Congress

thus authorized citizen suits to prevent the “addition

of any pollutant to navigable waters from any point

source,” see § 1362(12)(A), but if a listed statutory

exception applies, see § 1311(a).

The majority argues that this standard cannot be

satisfied when, as here, pollution travels briefly

through groundwater before reaching a navigable

water. Plaintiffs counter that such an exception has

no statutory basis and would allow polluters to shirk

their CWA obligations by placing their underground

drainage pipes a few feet away from the shoreline.

This case could have profound implications for those

in this Circuit who would pollute our Nation’s

waters. And the issue is novel. This Court has never

before considered whether the CWA applies in this

context.

However, the Fourth and Ninth Circuits have.

Both courts determined that a short journey through

groundwater does not defeat CWA liability. See

Upstate Forever v. Kinder Morgan Energy Partners,

L.P., 887 F.3d 637, 649–51 (4th Cir. 2018); Hawai’i

Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 745–49

(9th Cir. 2018). The Second Circuit reached a similar

30a

conclusion where the pollutants traveled briefly

through fields (which are not necessarily point

sources) and through the air. See Concerned Area

Residents for Env’t v. Southview Farm, 34 F.3d 114,

118–19 (2d Cir. 1994) (fields); Peconic Baykeeper, Inc.

v. Suffolk Cty., 600 F.3d 180, 188–89 (2d Cir. 2010)

(air). Until today, no Circuit had come out the other

way. The reason is simple: the CWA does not require

a plaintiff to show that a defendant discharged a

pollutant from a point source directly into navigable

waters; a plaintiff must simply show that the

defendant “add[ed] ... any pollutant to navigable

waters from any point source.” See §§ 1362(12)(A)

(emphases added), 1365(a), 1311(a); Upstate Forever,

887 F.3d at 650; Hawai’i Wildlife Fund, 886 F.3d at

749.

*449 The Supreme Court addressed this precise

issue in Rapanos v. United States, 547 U.S. 715, 126

S.Ct. 2208, 165 L.Ed.2d 159 (2006). There, Justice

Scalia’s plurality opinion was explicit:

The Act does not forbid the “addition of any

pollutant directly to navigable waters from

any point source,” but rather the “addition of

any pollutant to navigable waters.” [33

U.S.C.] § 1362(12)(A) (emphasis added); §

1311(a). Thus, from the time of the CWA’s

enactment, lower courts have held that the

discharge into intermittent channels of any

pollutant that naturally washes downstream

likely violates § 1311(a), even if the

pollutants discharged from a point source do

not emit “directly into” covered waters, but

pass “through conveyances” in between.

United States v. Velsicol Chemical Corp., 438

31a

F.Supp. 945, 946–947 (W.D.Tenn. 1976) (a

municipal sewer system separated the “point

source” and covered navigable waters). See

also Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133, 1137, 1141 (C.A.10 2005) (2.5

miles of tunnel separated the “point source”

and “navigable waters”).

Id. at 743, 126 S.Ct. 2208 (plurality opinion)

(emphasis in original). True, Justice Scalia’s

plurality opinion is not binding. But no Justice

challenged this aspect of the opinion, and for good

reason: the statutory text unambiguously supports it.

Further, applying the CWA to point-source

pollution traveling briefly through groundwater

before reaching a navigable water promotes the

CWA’s primary purpose, which is to “restore and

maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

By contrast, the majority’s approach defeats the

CWA’s purpose by opening a gaping regulatory

loophole: polluters can avoid CWA liability by

discharging their pollutants into groundwater, even

if that groundwater flows immediately into a nearby

navigable water. This exception has no textual or

logical foundation. As one district court observed,

it would hardly make sense for the CWA to

encompass a polluter who discharges

pollutants via a pipe running from the

factory directly to the riverbank, but not a

polluter who dumps the same pollutants into

a man-made settling basin some distance

short of the river and then allows the

pollutants to seep into the river via the

groundwater.

32a

See N. Cal. River Watch v. Mercer Fraser Co., No. C04-4620 SC, 2005 WL 2122052, at *2 (N.D. Cal. Sept.

1, 2005). In addition, this exception has no apparent

limits. Based on the majority’s logic, polluters are

free to add pollutants to navigable waters so long as

the pollutants travel through any kind of

intermediate

medium—for

example

through

groundwater, across fields, or through the air. This

would seem to give polluters free rein to discharge

pollutants from a sprinkler system suspended above

Lake Michigan. After all, pollutants launched from

such a sprinkler system would travel “in all

directions, guided only by the general pull of

gravity.” Kentucky Waterways Alliance, 18-5115 at

11, at ––––. According to the majority, this would

defeat CWA liability.2

The majority declines to reverse the district court’s other

finding that a coal ash pond is a point source under the CWA,

but suggests disagreement in a footnote. The CWA defines

“point source” as “any discernible, confined and discrete

conveyance,” including “any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure, container, rolling stock,

concentrated animal feeding operation, or vessel or other

floating craft, from which pollutants are or may be discharged.”

33 U.S.C. § 1362(14). The majority cites a recent Fourth Circuit

case, Sierra Club v. Va. Elec. & Power Co., No. 17-1952, 903

F.3d 403, 2018 WL 4343513 (4th Cir. Sept. 12, 2018), which

held that a coal ash pond is not a point source because it was a

“static recipient[ ] of the precipitation and groundwater that

flowed through [it].” 903 F.3d at 411, 2018 WL 4343513 at *6.

Looking at the text of the CWA, however, shows that, inter alia,

“ditch[es], well[s], container[s],” and “vessel[s]” are included in

the definition. 33 U.S.C. § 1362(14). The canon of ejusdem

generis states that “the general term must take its meaning

from the specific terms with which it appears.” Retail Ventures,

Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 691 F.3d 821, 833

(6th Cir. 2012). The common denominator between wells,

containers, ditches, and vessels is that each is a man-made,

2

33a

*450 I have a very different view. In cases where,

as here, a plaintiff alleges that a defendant is

defined area where liquid collects. The canon of ejusdem generis

thus suggests that man-made coal ash ponds are included in

this definition. The Fourth Circuit instead cites a dictionary

definition of “conveyance” as “a facility—for the movement of

something from one place to another” without explaining how

items like wells, containers, and vessels fit this definition. Va.

Elec. & Power Co., 903 F.3d at 410, 2018 WL 4343513, at *5

(quoting Webster’s Third New International Dictionary 499

(1961) ). The Fourth Circuit suggests that a container can be a

point source only if it is in the act of conveying something, 903

F.3d at 412–13, 2018 WL 4343513, at *7, ignoring that the

statutory definition includes “any ... container ... from which

pollutants are or may be discharged.” 33 U.S.C. § 1362(14)

(emphasis added).

The Fourth Circuit’s approach is further misguided in that it

conflicts with the broad interpretation that federal courts have

traditionally given to the phrase “point source.” See, e.g.,

Simsbury-Avon Pres. Society, Inc. v. Metacon Gun Club, Inc.,

575 F.3d 199, 219 (2d Cir. 2009) (quoting Dague v. City of

Burlington, 935 F.2d 1343, 1354–55 (2d Cir. 1991), rev’d on

other grounds, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449

(1992) ) (“[T]he definition of a point source is to be broadly

interpreted.”); Cmty. Ass’n for Restoration of the Env’t v. Henry

Bosma Dairy, 305 F.3d 943, 955 (9th Cir. 2002) (quoting Dague,

935 F.2d at 1354–55); Cmty. Ass’n for Restoration of Env’t

(CARE) v. Sid Koopman Dairy, 54 F.Supp.2d 976, 980 (E.D.

Wash. 1999) (citing Dague, 935 F.2d at 1354–55); Yadkin

Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141

F.Supp.3d 428, 444 (M.D. N.C. 2015) (quoting Dague, 935 F.2d

at 1354–55); see United States v. Earth Scis., Inc., 599 F.2d

368, 373 (10th Cir. 1979) (“[T]he concept of a point source was

designed to further [the CWA’s regulatory] scheme by

embracing the broadest possible definition of any identifiable

conveyance from which pollutants might enter the waters of the

United States.”). By embracing a restrictive definition of what

constitutes a point source, the Fourth Circuit jettisons these

long-standing principles.

34a

polluting navigable waters through a complex

pathway, the court should require the plaintiff to

prove the existence of pollutants in the navigable

waters and to persuade the factfinder that the

defendant’s point source is to blame—that the

defendant is unlawfully “add[ing] ... any pollutant to

navigable waters from any point source.” 33 U.S.C. §

1362(12)(A). The more complex the pathway, the

more difficult the proof. Where these cases are

plausibly pleaded, they should be decided on the

facts.

Instead, the majority holds that a plaintiff may

never—as a matter of law—prove that a defendant

has unlawfully added pollutants to navigable

waterways via groundwater. For its textual

argument, the majority refers us to the term

“effluent limitations.” This term, the majority says, is

defined as “restrictions on the amount of pollutants

that may be ‘discharged from point sources into

navigable waters.’ ” Maj. Op. at 444 (quoting with

emphasis 3 U.S.C. § 1362(11) ). Seizing on the word

“into”—which

denotes

“entry,

introduction,

insertion”—the majority concludes that the effluentlimitation definition implicitly creates an element of

“directness.” In other words, the majority reasons,

“for a point source to discharge into navigable

waters, it must dump directly into those navigable

waters[.]” Id. (emphasis in original).

*451 The majority is way off the rails. First of

all, “Congress ‘does not alter the fundamental details

of a regulatory scheme in vague terms or ancillary

provisions—it does not, one might say, hide

elephants in mouseholes.’ ” Epic Sys. Corp. v. Lewis,

35a

––– U.S. ––––, 138 S. Ct. 1612, 1626–27, 200 L.Ed.2d

889 (2018) (quoting Whitman v. Am. Trucking Assns.,

Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1

(2001) ). The majority should heed this commonsense

advice. Congress did not hide a massive regulatory

loophole in its use of the word “into.”

But more importantly, the majority’s quoted

definition of “effluent limitation” from § 1362(11)—

the supposed origin of the loophole—is not relevant

to this case. The citizen-suit provision uses the term

“effluent standard or limitation”—not the term

“effluent limitation.” See 33 U.S.C. § 1365(f). As the

majority itself argues, minor distinctions in statutory

language sometimes matter. This one does. The

phrase “effluent standard or limitation” is a term of

art and is wholly distinct from the term “effluent

limitation.” This conclusion is supported not by tea

leaves or a carefully selected dictionary, but rather

by the CWA itself. The citizen-suit provision of the

CWA provides that “effluent standard or limitation”

means, among other things, “an unlawful act under

subsection (a) of section 1311 of this title.” 33 U.S.C.

§ 1365(a). Turning to § 1311(a), we find that, absent

certain exceptions, “the discharge of any pollutant by

any person shall be unlawful,” § 1311(a), and the

“discharge of a pollutant” means “any addition of any

pollutant to navigable waters from any point source,”

§ 1362(12)(A) (emphasis added). Thus, even

assuming the majority correctly parses the definition

of “into”—a dubious proposition at best—the word

“into” is not contained in any of the statutory

provisions at issue. Rather, we find the word “to,”

which does not even arguably suggest a requirement

of directness; the word “to” merely “indicate[s]

36a

movement or an action or condition suggestive of

movement toward a place, person, or thing reached.”

To,

Merriam-Webster

Dictionary,

https://www.merriam-webster.com/dictionary/to.

It is therefore entirely unclear why the majority

relies on the definition of “effluent limitation.” That

definition is simply irrelevant to this lawsuit. As a

result, the majority’s criticisms of the approach

taken by the Fourth and Ninth Circuits miss the

mark. Indeed, the Fourth Circuit analyzed the

correct statutory text when it rejected the argument

that the citizen-suit provision requires directness:

[t]he plain language of the CWA requires only

that a discharge come “from” a “point source.”

See 33 U.S.C. § 1362(12)(A). Just as the

CWA’s definition of a discharge of a pollutant

does not require a discharge directly to

navigable waters, Rapanos, 547 U.S. at 743,

126 S.Ct. 2208, neither does the Act require a

discharge directly from a point source, see 33

U.S.C. § 1362(12)(A). The word “from”

indicates “a starting point: as (1) a point or

place where an actual physical movement ...

has its beginning.” Webster’s Third New

International Dictionary 913 (Philip Babcock

Gove et al. eds., 2002) (emphasis added); see

also The American Heritage Dictionary of the

English Language 729 (3d ed. 1992) (noting

“from” indicates a “starting point” or “cause”).

Under this plain meaning, a point source is

the starting point or cause of a discharge

under the CWA, but that starting point need

not also convey the discharge directly to

navigable waters.

37a

Upstate Forever, 887 F.3d at 650 (footnote omitted).

In short, if the majority would like to add a

“directness” requirement to *452 § 1311, it must

fight the statutory text to get there.

In addition, the majority fails to meaningfully

distinguish Justice Scalia’s concurrence in Rapanos,

which made clear that the CWA applies to indirect

pollution. It is true that Rapanos dealt with different

facts. But it is irrelevant that the pollution in

Rapanos traveled through point sources before

reaching a navigable water, whereas the pollution in

this case traveled through groundwater, which,

according to the majority, is not a point source. In

both cases, the legal issue is the same: whether the

CWA applies to pollution that travels from a point

source to navigable waters through a complex

pathway. See Rapanos, 547 U.S. at 745, 126 S.Ct.

2208 (asking whether “the contaminant-laden waters

ultimately reach covered waters”). Indeed, Justice

Scalia favorably cited the Second Circuit’s discussion

in Concerned Area Residents for the Environment.

Rapanos, 547 U.S. at 744, 126 S.Ct. 2208. In that

case, pollutants traveled across fields—which “were

not necessarily point sources themselves”—before

reaching navigable waters. Hawai’i Wildlife Fund,

886 F.3d at 748. Given the Supreme Court plurality’s

endorsement of the Second Circuit’s approach, the

majority’s attempt to distinguish Rapanos collapses.

Next, the majority warns that imposing liability

would upset the cooperative federalism embodied by

the CWA. On this view, the states alone are

responsible for regulating pollution of groundwater,

even if that pollution later travels to a navigable

38a

water. Wrong again. To be sure, the CWA recognizes

the “primary responsibilities and rights of States” to

regulate groundwater pollution. 33 U.S.C. § 1251(b).

But imposing liability in this case would not

marginalize the states. To the contrary, the district

court made clear that it was not regulating the

pollution of groundwater itself. See Tennessee Clean

Water Network v. Tennessee Valley Authority, 273 F.

Supp. 3d 775, 826 (M.D.Tenn. 2017) (“The Court

agrees with those courts that view the issue not as

whether the CWA regulates the discharge of

pollutants into groundwater itself but rather

whether the CWA regulates the discharge of

pollutants to navigable waters via groundwater.”

(quotation marks, alteration, and citation omitted) ).

Instead, the district court was addressing pollution of

a navigable water—specifically, the Cumberland

River—via groundwater. This distinction was clear to

the Fourth and Ninth Circuits. See Upstate Forever,

887 F.3d at 652 (“We do not hold that the CWA

covers discharges to ground water itself. Instead, we

hold only that an alleged discharge of pollutants,

reaching navigable waters ... by means of ground

water with a direct hydrological connection to such

navigable waters, falls within the scope of the

CWA.”); Hawai’i Wildlife Fund, 886 F.3d at 749

(“[T]he County’s concessions conclusively establish

that pollutants discharged from all four wells

emerged at discrete points in the Pacific Ocean.... We

leave for another day the task of determining when,

if ever, the connection between a point source and a

navigable water is too tenuous to support liability

under the CWA.”). Accordingly, imposing liability in

this case fits perfectly with the CWA’s stated

purpose: to “restore and maintain the chemical,

39a

physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a).

Finally, the majority offers a narrow reading of

the CWA because, in its view, a more inclusive

reading would render “virtually useless” the Coal

Combustion Residuals (“CCR”) Rule under the

Resource Conservation and Recovery Act (“RCRA”).

Maj. Op. at 445. The majority notes that if a

polluter’s conduct is regulated through a CWA

permit, then RCRA does not also apply. The majority

therefore suggests *453 that a straightforward

reading of the CWA is incompatible with RCRA. The

majority would gut the former statute to save the

latter.

But the EPA has already dismissed the

majority’s concern. Indeed, the EPA issued federal

regulations on this issue many decades ago. The

EPA’s interpretation is that the industrial discharge

of waste such as CCR is subject to regulation under

both RCRA and the CWA: RCRA regulates the way

polluters store CCR, and the CWA kicks in the

moment CCR enters a navigable waterway. See 40

C.F.R. § 261.4(a)(2). The EPA first articulated this

approach in a set of regulations from 1980, which

provide that “[i]ndustrial wastewater discharges that

are point source discharges subject to regulation

under section 402 of the Clean Water Act” “are not

solid wastes for the purpose of” the RCRA exclusion.

40 C.F.R. § 261.4(a)(2). This exclusion, the regulation

explains, “applies only to the actual point source

discharge. It does not exclude industrial wastewaters

while they are being collected, stored or treated

before discharge, nor does it exclude sludges that are

40a

generated by industrial wastewater treatment.” §

261.4(a)(2) (comment) (emphasis added). Thus, under

the EPA’s reading, a polluter can be liable under

RCRA for improperly storing CCR—even if the CCR

never enters a navigable waterway. See id.

Conversely, a polluter can be liable under the CWA

for adding CCR to a navigable waterway—even if the

polluter’s storage methods comport with RCRA. See

id. And of course, a polluter can be liable under both

statutes if the polluter both improperly stores CCR

and discharges it to a navigable waterway. See id.

The EPA settled any doubts on this matter by

publishing a detailed description of its rationale in

the Federal Register. See 45 Fed. Reg. 33098. The

EPA explained that 40 C.F.R. § 261.4(a)(2) reflects

the EPA’s interpretation that regulation of a

polluter’s discharge of industrial waste to a navigable

waterway pursuant to the CWA does not trigger the

42 U.S.C. § 6903(27) exclusion and therefore does not

exempt that polluter’s storage of CCR from

regulation under RCRA:

The obvious purpose of the industrial point

source discharge exclusion in Section 1004(27)

was to avoid duplicative regulation of point

source discharges under RCRA and the Clean

Water Act. Without such a provision, the

discharge of wastewater into navigable waters

would be “disposal” of solid waste, and

potentially subject to regulation under both

the Clean Water Act and Subtitle C [of

RCRA]. These considerations do not apply to

industrial wastewaters prior to discharge

since most of the environmental hazards

posed by wastewaters in treatment and

41a

holding facilities—primarily groundwater

contamination—cannot be controlled under

the Clean Water Act or other EPA statutes.

Had Congress intended to exempt industrial

wastewaters in storage and treatment

facilities from all RCRA requirements, it

seems unlikely that the House Report on

RCRA would have cited, as justification for

the development of a national hazardous

waste management program, numerous

damage incidents which appear to have

involved leakage or overflow from industrial

wastewater impoundments. See, e.g., H.R.

Rep. at 21. Nor would Congress have used the

term “discharge” in Section 1004(27). This is a

term of art under the Clean Water Act

(Section 504(12) ) and refers only to the

“addition of any pollutant to navigable

waters”, not to industrial wastewaters prior to

and during treatment.

*454 Since the comment period closed on

EPA’s regulations, both Houses of Congress

have passed amendments to RCRA which are

designed to provide EPA with more flexibility

under Subtitle C in setting standards for and

issuing permits to existing facilities which

treat or store hazardous wastewater. See

Section 3(a)(2) of H.R. 3994 and Section 7 of

S.1156. See also S. Rep. No. 96-173, 96th

Cong., 1st Sess. 3 (1979); Cong. Rec. S6819,

June 4, 1979 (daily ed.); Cong. Rec. H1094–

1096, February 20, 1980 (daily ed.). These

proposed amendments and the accompanying

legislative history should lay to rest any

question of whether Congress intended

42a

industrial wastewaters in holding or

treatment facilities to be regulated as “solid

waste” under RCRA.

45 Fed. Reg. 33098. Congress ratified the EPA’s

interpretation when it enacted amendments to

RCRA, which the EPA said would “lay to rest” any

concerns about whether industrial wastes like CCR

are subject to regulation under both RCRA (in terms

of their storage and treatment) and the CWA (in

terms of their discharge to navigable waters). Id.; see

Public Law 96-482. From this history, and from the

text of the statutes, we can surmise that Congress

intended to delegate to the EPA the power “to speak

with the force of law” on this aspect of the interplay

between RCRA and the CWA. See United States v.

Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150

L.Ed.2d 292 (2001). Exercising this authority, the

EPA reached an interpretation that is different

from—and incompatible with—that of the majority.

Contravening

bedrock

principles

of

administrative law, the majority bulldozes the EPA’s

interpretation of its own statutory authority without

even discussing the possibility of deference. But “[w]e

have long recognized that considerable weight should

be accorded to an executive department’s

construction of a statutory scheme it is entrusted to

administer, and the principle of deference to

administrative interpretations.” Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844,

104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

In Chevron, this Court held that ambiguities

in statutes within an agency’s jurisdiction to

administer are delegations of authority to the

agency to fill the statutory gap in reasonable

43a

fashion. Filling these gaps, the Court

explained, involves difficult policy choices

that agencies are better equipped to make

than courts. 467 U.S. at 865–866, 104 S.Ct.

2778. If a statute is ambiguous, and if the

implementing

agency’s

construction

is

reasonable, Chevron requires a federal court

to accept the agency’s construction of the

statute, even if the agency’s reading differs

from what the court believes is the best

statutory interpretation.

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162

L.Ed.2d 820 (2005). The EPA says that imposing

CWA liability for the discharge of CCR to navigable

waterways does not eliminate the possibility of

RCRA liability for the storage and treatment of CCR.

The majority suggests the exact opposite.

Unfortunately for the majority, but fortunately for

those who enjoy clean water, the majority lacks the

authority to override longstanding EPA regulations

on a whim. See id.

For all these reasons, I believe the CWA clearly

applies to the pollution in this case. Accordingly, I

would join our sister circuits in holding that the

CWA prohibits all pollution that reaches navigable

waters “by means of ground water with a direct

hydrological connection to such navigable waters[.]”

*455 Upstate Forever, 887 F.3d at 652; see Hawai’i

Wildlife Fund, 886 F.3d at 745–49. Under this

standard, the unpermitted leaks from NRS and

Complex are clearly unlawful.

44a

II. The Permit’s Sanitary Sewer Overflow

Provision

The

permit

prohibits

“Sanitary

Sewer

Overflows,” which it defines as “the discharge to land

or water of wastes from any portion of the collection,

transmission, or treatment system other than

through permitted outfalls.” (R. 1-2, permit, PageID#

79.) The district court found, and TVA no longer

disputes, that the Complex discharges coal ash waste

to groundwater through its unlined, leaking sides

and bottoms. These discharges are not authorized by

the permit. Therefore, Plaintiffs have proven a

permit violation.

The

majority

avoids

this

result

by

overcomplicating the issue. Ignoring the plain text of

the permit, the majority instead champions the

EPA’s standard definition of “Sanitary Sewer

Overflow,” which is narrow and arguably saves TVA

from liability. This reasoning is perplexing. The

EPA’s definition should play no role in the legal

analysis here because the permit itself defines

“Sanitary Sewer Overflow.” Indeed, TVA’s permit

expert conceded in the district court that the permit’s

definition is broader than the EPA’s definition.

Accordingly, this Court should apply the plain text of

the permit’s definition, as it would apply the plain

text of any contract. This Court has no plausible

authority or reason to substitute a definition

provided in the permit with one drafted in a different

context by a nonparty who has no relation to this

case.

Further, the EPA’s standard definition makes

little sense in this context. As the majority

45a

recognizes, that definition applies only to sewage

from sanitary sewer systems. But a coal ash pond is

not a “sanitary sewer system.” It does not contain

“sewage.” Consequently, interpreting the Sanitary

Sewer Overflow provision to regulate sewage alone

would render the provision meaningless. This Court

should avoid such an interpretation, especially when

the permit itself provides a definition that does not

trigger any such concerns. See Gallo v. Moen Inc.,

813 F.3d 265, 273 (6th Cir. 2016) (noting the general

rule that “courts should interpret contracts to avoid

superfluous words”).

For these reasons, I would hold that the district

court correctly ruled that the Complex’s karst-related

leaks violate the sanitary-sewer provision.

Conclusion

As set forth above, I believe that the CWA

applies to TVA’s indirect pollution of navigable

waters and that TVA violated the permit’s Sanitary

Sewer Overflow provision. Because the majority

disagrees as to both issues, I respectfully dissent.

46a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TENNESSEE CLEAN WATER

NETWORK; TENNESSEE SCENIC

RIVERS ASSOCIATION,

Plaintiffs,

No. 3:15-CV00424

CHIEF JUDGE

CRENSHAW

v.

TENNESSEE VALLEY

AUTHORITY,

Defendant.

ORDER

WAVERLY D. CRENSHAW, JR., CHIEF UNITED

STATES DISTRICT JUDGE

*1 On January 30 through February 2, 2017, the

Court held a bench trial on the remaining Clean

Water Act (“CWA”) claims filed by the Tennessee

Clean Water Network and Tennessee Scenic Rivers

Association (“Plaintiffs”) against the Tennessee

Valley Authority (“TVA”) relating to TVA’s operation

of a coal-fired power plant about five miles south of

the city of Gallatin, Tennessee. For the reasons

discussed in the accompanying Findings of Fact &

Conclusions of Law, the Court hereby directs the

entry of judgment for the Plaintiffs on Claims A, C,

D, E.b, and E.e and judgment for TVA on Claims B,

E.a, E.c and E.d. The Court further holds that no

civil fines shall be assessed against TVA in light of

47a

the substantial costs expected to be associated with

remediating its violations.

TVA is ordered to wholly excavate the ash waste

disposal areas designated in the accompanying

Findings of Fact & Conclusions of Law as the Ash

Pond Complex and the Non-Registered Site and shall

relocate the excavated coal ash waste to a lined

impoundment with no significant risk of discharge

into the waters of the United States. Within thirty

days of the entry of this Order, TVA shall file an

itemized proposed timetable for compliance,

including a proposed schedule for filing periodic

updates with the Court.

The injunctive relief granted by this Order shall

be considered a minimum obligation and should not

be construed to restrict, conflict with, or foreclose any

more comprehensive relief arising out of the

litigation currently ongoing in Tennessee state courts

or any other litigation, proceeding, administrative

process, or other source of law. If any injunction or

other obligation arises out of that or any other action

that directly conflicts with the obligations imposed

by this Court, TVA and/or Plaintiffs shall file

motions with the Court seeking modification or

clarification of this Order.

The Court hereby directs the Clerk to enter

judgment in accordance with Federal Rule of Civil

Procedure 58.

IT IS SO ORDERED.

s/ WAVERLY D. CRENSHAW, JR.

CHIEF UNITED STATES DISTRICT JUDGE

48a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TENNESSEE CLEAN WATER

NETWORK; TENNESSEE SCENIC

RIVERS ASSOCIATION,

Plaintiffs,

v.

TENNESSEE VALLEY

AUTHORITY,

No. 3:15-CV00424

CHIEF JUDGE

CRENSHAW

Defendant.

FINDINGS OF FACT & CONCLUSIONS OF

LAW

WAVERLY D. CRENSHAW, JR., CHIEF UNITED

STATES DISTRICT JUDGE

*781 The Tennessee Clean Water Network and

Tennessee Scenic Rivers Association (“Plaintiffs”)

filed a Complaint against the Tennessee Valley

Authority (“TVA”) alleging numerous violations of

the Clean Water Act (“CWA”) related to TVA’s

operation of a coal-fired power plant about five miles

south of the city of Gallatin, Tennessee (“Gallatin

Plant”). (Doc. No. 1.) On September 9, 2016, the

Court dismissed a portion of Plaintiffs’ claims on the

49a

merits and a portion of the claims on the ground that

the Court was barred from considering the

allegations at issue in light of an ongoing State of

Tennessee enforcement proceeding. (Doc. No. 139.)

On January 30 through February 2, 2017, the Court

held a bench trial on the remaining claims.

For the reasons discussed herein, the Court will

direct the Clerk to enter judgment for the Plaintiffs

on Claims A, C, D, E.b, and E.e. It will direct the

Clerk to enter judgment for TVA on Claims E.c and

E.d, as well as Claims B and E.a, which were

dismissed by earlier Order of the Court. (Doc. No.

140.) TVA shall be ordered to excavate the Ash Pond

Complex and Non–Registered Site and move the coal

ash waste currently therein to a lined impoundment.

In light of the substantial costs TVA is likely to incur

in remediating its ash pond disposal areas, the Court

declines to assess penalties on top of its injunctive

relief.

I. CLAIMS

1. The following claims are before the Court:

• Claim A alleges generally that TVA unlawfully

discharged pollutants into the waters of the

United States from a point source or point

sources through hydrologic flow from its ash

ponds to the Cumberland River.

• Claim C alleges specifically that TVA is

responsible for unpermitted point source

discharges from the abandoned ash pond area

known as the “Non–Registered Site.”

50a

• Claim D alleges specifically that TVA is

responsible for unauthorized point source

discharges from its currently active ash pond

complex, known as the “Ash Pond Complex.”

• Claim E.b alleges that TVA violated Part

I.A(c) of its NPDES permit.

• Claim E.c alleges that TVA violated Part

II.A(4.a) of its NPDES permit.

• Claim E.d alleges that TVA violated Part

II.C(2) of its NPDES permit.

• Claim E.e alleges that TVA violated Part

II.C(3.b) of its NPDES permit.

2. In light of the Court’s September 9, 2016

ruling and the ongoing State proceedings, the above

claims are limited to two types of alleged discharges

from the Gallatin Plant: 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. By the

terms of the Court’s Order, this limitation applies

not only to claims A, C, and D—which explicitly

allege unauthorized discharges—but also to claims

E.b through E.e, insofar as those claims are premised

on allegations related to leaks. (Id.)

51a

II. NATURE OF FINDINGS AND

CONCLUSIONS

3. After reviewing the parties’ proposed findings

and conclusions, their arguments, the record, the

exhibits received in evidence, and the testimony of

the witnesses and consideration of their interests

and demeanor, the Court enters the following

Findings of Fact and Conclusions of Law *782 in

accordance with Rule 52(a) of the Federal Rules of

Civil Procedure. Except where the Court discusses

differing testimony on a specific issue, any contrary

testimony on that matter has been considered and

rejected in favor of the specific fact found. Finally, to

the extent that a finding of fact constitutes a

conclusion of law, the Court so concludes; to the

extent that a conclusion of law constitutes a finding

of fact, the Court so finds.

III. FINDINGS OF FACT

4. Trial in this case involved the presentation of

the often conflicting testimony of numerous experts

on a number of closely related topics. The Court’s

Findings of Fact, below, are a reflection of the

information presented as well as the Court’s

contemporaneous observation and assessment of the

witnesses’ credibility. The omission of any particular

detail from the below findings of fact should not be

construed as the Court’s failure to consider that

detail or inferences it would support, but rather

merely an indication that, in the process of

condensing a voluminous record, some details were

omitted in the interest of conveying a manageably

concise presentation of the relevant evidence and

52a

limiting the Findings of Fact to the details that the

Court considered ultimately dispositive.

A. Background

1. General Principles of Hydrology1

5. This case is about water. Water comes in

various forms and can be found in various places.

6. In its liquid form, water may pool or flow on

top of the surface of the earth—for example, in the

Cumberland River. Because these bodies of water

can be found on the surface of the earth, they are

categorized as “surface waters.” SURFACE WATER,

Merriam–Webster Dictionary (online ed. 2017).

7. Water is also present below the surface of the

earth, in what is known as “groundwater.”

GROUNDWATER, Merriam–Webster Dictionary

(online ed. 2017). Liquid groundwater tends to flow

through the earth, from places of high elevation to

Hydrology is “a science dealing with the properties,

distribution, and circulation of water on and below the earth’s

surface and in the atmosphere.” HYDROLOGY, Merriam–

Webster Dictionary (online ed. 2017). Numerous experts in this

matter testified regarding relevant hydrological matters.

Although they sometimes differed in their conclusions and

terminology, the Court has been able to identify a number of

core principles of hydrology that underlie the issues in this case.

The Court will present those general principles here in a highly

simplified form. The Court’s statement of general principles is

not intended to disregard or negate any complicating details set

forth in individual witnesses’ testimony.

1

53a

places of lower elevation, eventually joining surface

waters and flowing to the sea. (See Doc. No. 227–1

(Groves Wr. Test.) at ¶ 27.)

8. Not all earth, though, is created equal when it

comes to the flow of groundwater. In some types of

earth, such as gravel or loose soil, water may seep

broadly through pores. In other types of earth, such

as fractured rock, water may instead pass quickly

but narrowly through fissures. In yet other types of

earth, such as tightly packed clay, water may not

pass well at all, because there is no space for the

water to occupy. Portions of earth that readily

transmit water are called “aquifers.” Portions of

earth that do not readily transmit water are called

“aquitards.” Most groundwater environments include

a mixture of the two. (See Doc. No. 230–1 (Perry Wr.

Test.) at 4–5.)

9. Generally speaking, water that penetrates the

earth will, due to the pull of gravity, flow downward

until it penetrates what is known as the “water

table.” (See Doc. No. 227–1 (Groves Wr. Test.) at ¶

27.) *783 The water table is the top of an area of

earth totally saturated with groundwater. Beneath

the water table, at least as relevant to this case, is

the continuous flow of groundwater through the

earth toward surface waters. (Id.) The particular

elevation of the water table in any given area may

fluctuate over time in response to precipitation. ( See

Doc. No. 230–1 (Perry Wr. Test.) at 14.)

10. Liquid or solid water falls to the earth in the

form of precipitation—rain, sleet, or snow. If

precipitation falls immediately upon a preexisting

54a

surface water, the precipitation will join that surface

water. Water that falls upon the earth will either

pool there—as surface water—or it will penetrate the

earth and join the groundwater. (See Doc. No. 227–1

(Groves Wr. Test.) at ¶ 45.)

11. As water passes through the earth on its way

to surface waters, it may pick up chemicals from the

material it passes through and then carry those

chemicals with it on its path to surface waters. (See

Doc. No. 230–1 (Perry Wr. Test.) at 6.) If the water

passes through an area filled with pollutants—for

example, a large impoundment of coal ash waste—it

may pick up some of those pollutants and then

convey them to nearby surface waters.

12. Water that penetrates a particular patch of

earth directly from above—such as rain penetrating

directly into the earth it fell upon—is said to have

penetrated that earth vertically. Water that

penetrates a particular patch of earth via

groundwater flow, on the other hand, is said to have

penetrated it laterally. Generally speaking, if a

particular patch of earth is wholly above the water

table, it will be penetrated only vertically, when

precipitation falls upon it or immediately near it. If

the patch of earth extends past the water table and

into a continuous groundwater flow, however, the

patch will be penetrated both vertically, by

immediate precipitation, and also laterally, by

groundwater that could include water that first fell

to earth a significant distance away. (See Doc. No.

227–2 (Quarles Wr. Test.) at ¶ 45.)

13. For example, the below figure shows one zone

55a

of earth penetrated only vertically,

penetrated both vertically and laterally:

and

one

*784

14. Because zone A terminates before breaching

the water table, it is penetrated only vertically.

Precipitation enters zone A at the surface of the

earth, passes through it, then eventually joins the

groundwater level below zone A’s lower boundary.

15. But because zone B extends past the water

table, zone B is penetrated both vertically and

laterally. Some water penetrates via precipitation at

the surface, then flows down and joins the

groundwater. Yet other water, already part of the

groundwater flow, penetrates zone B from the side.

16.

Although

both

hypothetical

zones

are

56a

penetrated by water, and the water from each

eventually ends up in the same groundwater flow, a

key difference exists in how one might shield the

respective zones from future water flow. A simple

surface cap would largely protect zone A by blocking

precipitation. Pollutants from zone A then would be

unlikely to join the groundwater flow in significant

levels. A cap alone, however, would not keep out

pollutants from zone B, because the cap would do

nothing to impede the lateral flow of groundwater

through those pollutants, even in the absence of

penetration by immediate precipitation. If one truly

wished to keep the pollutants from zone B out of the

groundwater, one would need to either install a

lining around its entire perimeter or permanently

excavate the pollutants.

17. In summary, these basic principles form the

foundation of this case: (1) water, in the form of

precipitation, penetrates the ground and becomes

groundwater; (2) groundwater generally flows

through the earth toward surface waters that

ultimately connect to the sea; (3) as waters pass

through the earth, they pick up chemicals, including

potentially harmful pollutants, that they then convey

to the surface waters; and (4) passage of water

through a particularly toxic area can be prevented

either by blocking the water or removing the toxins.

2. The Gallatin Plant

18. The Gallatin Plant is a four-unit coal-fired

power plant located in Sumner County, *785

Tennessee, about five miles south of the city of

Gallatin on the Odom’s Bend Peninsula formed by

the Old Hickory Lake portion of the Cumberland

57a

River between River Miles 242.5 and 246. (Doc. No.

226 (J. Stip.) at ¶ 1.) Old Hickory Lake is a reservoir

created by the construction of the Old Hickory Lock

and Dam. (Id. at ¶ 5.)

19. Odom’s Bend Peninsula is situated over some

karst geological features, with sinking streams,

shallow bedrock, and sinkholes. (Id. at ¶ 17.) The

Central Basin, in which the Gallatin Plant is located,

is one of several major areas of karst development in

Tennessee. (Doc. No. 227–1 (Groves Wr. Test.) at ¶

32.)

20. The Gallatin Plant commenced operation in

1956. (Doc. No. 226 (J. Stip.) at ¶ 3.)

21. From 1956 until 1970, the Gallatin Plant

sluiced coal combustion residual (“CCR”) material to

a 65–acre surface impoundment on the western edge

of the plant site known then as Ash Disposal Areas

No. 1 and No. 2 but now typically referred to as the

Non–Registered Site. The Non–Registered Site has

been out of operation since 1970. (Id. at ¶ 7.)

22. TVA constructed the Non–Registered Site

with unlined perimeter containment dikes made of

earth and ash. (Id. at ¶ 11.)

23. In the mid–1990s, the Tennessee Department

of Environment & Conservation (“TDEC”) asked TVA

to formulate a closure plan for the Non–Registered

Site, which TVA did. (Id. at ¶ 8.) Construction work

related to the closure was apparently completed in or

around 1998. (Doc. No. 234 (Tr. Day 1) at 192.)

58a

24. Since April 1970, TVA has been sluicing coal

ash waste to the approximately 476–acre Ash Pond

Complex, which is also unlined. (Doc. No. 226 (J.

Stip.) at ¶ 12.) The Ash Pond Complex is located just

to the north and to the northeast of the Non–

Registered Site along the bank of the Cumberland

River. (Id. at ¶ 13.)

25. The Ash Pond Complex consists of the

following ponds: Ash Pond A, Ash Pond E, Bottom

Ash Pond, Middle Pond A, and a stilling pond

complex consisting of Stilling Ponds B, C, and D. In

2015, TVA ceased sluicing ash to Ash Pond E and

began dewatering that pond. Stilling Pond D

discharges effluent into the Cumberland River at a

site known as Outfall 001. (Id. at ¶¶ 14–16.)

3. The Gallatin Plant’s Permit

26. On April 30, 1976, the U.S. Environmental

Protection Agency (“EPA”) issued the first NPDES

Permit to TVA for Gallatin (Permit No. TN0005428).

(Id. at ¶ 19.) The Tennessee Department of

Environment and Conservation (“TDEC”), which now

administers Tennessee’s NPDES system on

delegation from the federal government, re-issued

the Gallatin Plant’s NPDES Permit No. TN0005428

on January 1, 2006. (Id. at ¶ 21.)

27. In May 2009, TVA submitted to TDEC an

application for renewal of Gallatin’s NPDES Permit

No. TN0005428. TDEC reissued the Gallatin Plant’s

NPDES Permit No. TN0005428 for a five year period

beginning July 1, 2012, and ending May 31, 2017.

(Id. at ¶¶ 22–23.) When the permit recently expired,

it was administratively continued until the issuance

59a

of a new permit, currently under consideration. (Doc.

No. 251 at 2 (citing Tenn. Comp. R. & Regs. 0400–

40–05–.05(3)(b)–(4), 0400–40–05–.11(2)).)

28. The current permit expressly authorizes the

discharge of coal ash waste from one location, Outfall

001. (J. Ex. 102 at 1.)

29. Part I.A(c) of the NPDES permit, known as

the “Removed Substances” provision, provides:

*786 Additional monitoring requirements and

conditions applicable to Outfalls 001 ... include:

[ .... ]

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.

(Id. at 11.)

30. Part 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.” (Id. at 19.)

31. Part II.C.2 creates an obligation to inform

60a

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.

(Id. at 22.)

32. Part II.C.3.b forbids “Sanitary Sewer

Overflows” at the Gallatin Plant, which the permit

defines as “the discharge to land or water of wastes

from any portion of the collection, transmission, or

treatment system other than through permitted

outfalls.” (Id.)

4. Plaintiffs’ Notice and State Court

Proceedings

33. On November 10, 2014, Plaintiffs, through

counsel, issued a 60–day Notice of Violation Letter to

TVA, TDEC, and the EPA under the citizen suit

provision of the Clean Water Act, 33 U.S.C § 1365

(“CWA” or “Act”), alleging multiple violations of the

Act at the Gallatin Plant. See 33 U.S.C §§ 1251–

1387. The Notice stated that Plaintiffs intended to

file a complaint in federal court against TVA to

61a

enforce requirements of the CWA and the Permit.

(Doc. No. 226 (J. Stip.) at ¶ 24.)

34. On January 7, 2015, the State of Tennessee

(“State”) and TDEC filed an original enforcement

action against TVA in Davidson County Chancery

Court under applicable state statutes (“State

Enforcement Action”). (Doc. No. 13–5 at PageID 320–

21.) The complaint in the State Enforcement Action

specifically refers to ten seeps from the Ash Pond

Complex, and the parties have identified those ten

seeps to the Court. (Doc. No. 234 (Tr. Day 1) at 14.).

35. As part of the State Enforcement Action,

which remains pending, TVA is in the process of

completing and executing an Environmental

Investigation Plan (“EIP”) that is intended to better

investigate and understand the environmental

features of the Gallatin Plant site. Plaintiffs, who are

intervenors in the State Enforcement Action, as well

as TDEC have been involved in the process of

reviewing the EIP.

5. Proceedings in this Court

36. Plaintiffs filed their Complaint in this action

on April 14, 2015. (Doc. No. 1.)

37. The parties filed various dispositive motions,

and on September 9, 2016, the Court issued an Order

dismissing Plaintiffs’ Claims B and E.a. The Court

also dismissed the remaining claims except as *787

they applied to two sets of allegations: “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.” (Doc.

62a

No. 140 at 1.) Finally, the Court struck Plaintiffs’

demand for a jury trial, on the ground that, because

TVA is a creature of the federal government, the

Seventh Amendment does not guarantee Plaintiffs a

right to a jury trial. (Id.)

38. Accordingly, the claims that had not been

dismissed were considered by the Court in a bench

trial held from January 30 through February 2, 2017.

By agreement of the parties and pursuant to Local

Rule 39.01(c)(6), direct testimony of expert witnesses

was provided in written form, which was accepted

into evidence. Key portions of the written testimony

were read in Court, after which the expert witnesses

were made subject to cross examination.

B. Plaintiffs’ Evidence at Trial

1. Testimony of Dr. Chris Groves

39. Dr. Chris Groves holds the position of

University Distinguished Professor of Hydrogeology

at Western Kentucky University (“WKU”). He has a

B.S. degree in Geology and an M.S. degree in

Geography from WKU, as well as a Ph.D. in

Environmental Sciences (Geology) from the

University of Virginia. He is currently serving as a

member of the steering committee of the Karst

Commission of the International Geographic Union

and has amassed a lengthy resume of professional

service, honors, grants, and publications indicative of

accomplishment and expertise in the field of

hydrogeology. (Doc. No. 163–1 (Groves CV).) Groves

is licensed as Kentucky Professional Geologist No.

2585. (Doc. No. 227–1 (Groves Wr. Test.) at ¶ 3.)

63a

40. Groves described hydrogeology as the science

of how underground water is distributed and how it

moves through the soil as soil water, and through

rocks beneath the surface as groundwater. (Id. at ¶

28.)

41. Hydrogeology includes examination of issues

related to water quality and how water’s chemical

composition is impacted by interactions with rocks,

gases, biological processes, surface waters, and

human sources of contamination. (Id.)

42. Groves testified that he has more than thirty

years of professional experience in the study of

landscape and aquifer systems, and that this case

was the first matter in which he had been retained

as an expert witness in a lawsuit or testified in court

as an expert witness. (Id. at ¶¶ 2–3.)

43. The parties have stipulated and agreed that

Groves is qualified as an expert by knowledge, skill,

experience, training, or education pursuant to

Federal Rule of Evidence 702. (Doc. No. 221.)

44. Groves stated his opinion that, based on his

review of historic maps, borings, and TVA’s own

internal reports, as well as his own knowledge and

understanding of hydrogeological formations in the

Central Basin and Odom’s Bend Peninsula, he

considered the Gallatin Plant coal ash disposal sites

“unsuitable for the containment of coal ash.” (Id. at ¶

7.)

45. Specifically, he opined that the Ash Pond

Complex does not and cannot effectively contain coal

64a

ash waste, and in particular was constructed on top

of highly porous limestone with numerous existing

sinkholes and an associated underground karst flow

system. He stated that these features permit the

waste to migrate into groundwater and to the

adjacent and hydrologically connected Cumberland

River. (Id. at ¶ 8.)

46. Groves testified that, in his opinion, both the

Non–Registered Site and the Ash Pond Complex

were constructed at least partially below the water

table and are *788 thus in contact with the

groundwater. (Id. at ¶ 9.)

47. Groves testified that, in general, water flows

from high areas to low areas of the water table, and

that, in this case, the groundwater flows from the

peninsula, including from the Ash Pond Complex, to

the Cumberland River. (Id. at ¶ 27.) Groves

presented a 2012 water table map showing the water

table reducing in level from the interior of Odom’s

Bend Peninsula toward the river, tending to suggest

that, generally speaking, water flows radially from

the interior of the peninsula to the river, passing

through both the Ash Pond Complex and Non–

Registered Site. (Id. at ¶¶ 106–07.) Groves noted that

TVA’s historical documents acknowledged this

general groundwater flow pattern numerous times.

(Id. at ¶ 110.)

48. He described the Central Basin as a

relatively simple geologic setting consisting of nearly

horizontal sedimentary rock layers, with each rock

layer being distinguishable by various properties,

including porosity and permeability. (Id. at ¶ 33.)

65a

The nearly horizontal aquifers that underlie the

Central Basin include layers of Carters and Ridley

Limestones. Water flows relatively easily through

these rocks because, compared to the adjacent layers,

they are purer limestones, which dissolve easily and

thus contain fractures that have been enlarged by

dissolution as groundwater moves through. (Id. at ¶

35.)

49. Groves discussed in particular an April 2008

document

prepared

by

TVA

titled

“Final

Environmental Impact Statement Rutherford–

Williamson–Davidson Power Supply Improvement

Project Rutherford Williamson and Maury Counties

Tennessee, TVA Project Number 2005–107” (“2008

FEIS”). (Id. at ¶¶ 36–37 (discussing J. Ex. 49)).

50. Groves approvingly cited the 2008 FEIS’s

statement that, in the Central Basin aquifer system,

“most of the groundwater resides in and flows

through fractures, bedding planes, small solution

openings, and large open conduits.” (Id. at ¶ 37

(quoting J. Ex. 49 at 67)).

51. The 2008 FEIS further states that

“[l]imestone is susceptible to erosion and dissolution,

which produces fissures, sinkholes, underground

streams, and caverns forming vast karst areas.” (J.

Ex. 49 at 67.) It states that the “project area” is

located in karst terrain, and that

[k]arst landforms result from mildly

acidic rainwater dissolving bedrock such

as limestone or dolostone. Over time,

66a

these fractures enlarge as the bedrock

continues to dissolve. Openings in the

rock increase in size, and an underground

drainage system begins to develop,

allowing more water to pass through and

accelerating the formation of underground

karst features.

(Id.)

52. Groves testified that in karst landscapes,

tributary networks combine with one another,

leading to larger and larger flows. (Doc. No. 227–1

(Groves Wr. Test.) at ¶ 39.) Consistently with Groves’

assessment, the 2008 FEIS states that

Groundwater flows from the recharge

areas through fractures and conduits and

eventually discharges to springs and

gaining streams. Large conduits or

interconnected conduit systems may

consolidate groundwater flow similar to

the way surface water flows from small

tributaries to larger streams. These

interconnected,

open

conduits

(the

groundwater

conduit

system)

can

transmit water rapidly and can act as

important local and regional drains of the

groundwater system.

(Id. (quoting J. Ex. 49 at 67).) “Recharge” refers to

water that has infiltrated into the ground. (Id. at ¶

38.)

67a

*789 53. The 2008 FEIS further observes that

“[g]roundwater in karst terrains is readily

susceptible to contamination, as the water can travel

long distances through conduits with no chance for

the natural filtering processes of soil or bacterial

action to diminish the contamination.... Karst

features in the project area include sinkholes,

disappearing

streams,

reappearing

streams

(springs), and caves.” (J. Ex. 49 at 68.)

54. Groves described the aquifer framework in

karst landscapes as “colander-like” due to the

abundance of passages through which water can

move. (Doc. No. 227–1 (Groves Wr. Test.) at ¶ 41.) He

testified that the hydrogeological literature describes

many examples of situations where karst limestone

aquifers of Tennessee’s Central Basin, and the rivers

into which they drain, have been polluted by

accidental spills and other releases of contaminants.

(Id. at ¶ 43.)

55. Groves testified to his opinion, based on his

review of literature and case materials, that at the

Gallatin Fossil Plant, underground water primarily

flows through openings that have been enlarged by

the flow of water within the purer limestones. (Id. at

¶ 44.) In particular, the Carters Limestone that

underlies the Ash Pond Complex transmits

groundwater comparatively easily and rapidly

through fractures and other conduits that have been

enlarged by dissolution of the limestone bedrock by

groundwater flowing through it. (Id. at ¶ 46.)

56. Groves explained that the karst-enabled

68a

drainage in the ash ponds themselves was obscured

from view by coal ash waste, but that if the area had

not been covered by coal ash waste, one would expect

to see rainfall landing on the ground and quickly

sinking underground into the highly porous bedrock.

(Id. at ¶ 45.)

57.

Groves

discussed

TVA’s

historical

documentation of the geology of the area before TVA

built the ash pond disposal sites. The documentation

showed numerous limestone sinkholes in the area

that is now the Ash Pond Complex. It also showed

numerous lineaments—naturally occurring, linear

features of the landscape that provide insight into

the subsurface fracture patterns and magnitude. (Id.

at ¶¶ 48–52.) Based on Groves’ review of TVA’s map,

he concluded that the subsurface fractures in Odom’s

Bend Peninsula are extensive and would allow water

and any waste in the water to drain into the

groundwater. (Id. at ¶ 53.) Groves stated that he had

never seen any TVA documentation that these

fractures were repaired, and that he believed any

such repair to be nearly impossible in light of the

fractures’ extensive nature. (Id.)

58. Based on the foregoing, Groves stated that it

was his professional opinion that fractures and

related solutionally enlarged conduits under the coal

ash disposal areas transport coal ash waste to the

groundwater. (Id.)

59. Groves also noted that his review of the

Tennessee Cave Survey showed at least nine

explorable caves in the area including Odom’s Bend

Peninsula, and that it was his opinion that because

69a

there are so many caves in this area, there is a high

probability that other caves were present on Odom’s

Bend that have been covered by coal ash waste and

slurry water. (Id. at ¶ 55.)

60. Groves next discussed logs of borings

performed by TVA and its contractors in the vicinity

of the Ash Pond Complex. As Groves read the logs,

the borings identified at least seventy “voids” or

“apparent voids” in the earth, ranging from 4 to 18.6

feet in height, many of which were connected to the

groundwater flow system. (Id. at ¶ 59.)

61. Groves also opined that, based on his review

of historical documents, the Ash *790 Pond Complex

was located on top of a sinking stream referred to as

“Sinking Creek.” Sinking streams are streams that

sink underground into the highly permeable

limestone beneath and drain through the karst

aquifer system to the nearest base level river, in this

case the Cumberland River. Groves described sinking

streams as among the most classic of karst features.

(Id. at ¶¶ 60–65.)

62. Sinking streams disappear underground at

“swallets”—holes into which the stream disappears

into the subsurface. The water continues flowing

underground to the relevant river, here the

Cumberland. Groves’ opinion, based on the historical

documentation, was that the swallets of Sinking

Creek are currently underneath the Ash Pond

Complex. (Id. at ¶¶ 63–65.)

63. Groves opined that, because the former

surface of the valley of Sinking Creek is, based on his

70a

reading, now the base of the Ash Pond Complex, he

would assume that the coal ash waste water now

moves directly into the subsurface under the Ash

Pond Complex to the Cumberland River, just as

water moved through the bottom of Sinking Creek to

the Cumberland River before it held the Ash Pond

Complex. (Id. at ¶ 101.)

64. Groves reviewed numerous TVA findings and

reports regarding the groundwater and/or geology

around the Gallatin Plant, including reports from

1982, 1987, 1989, 1992, 1999, 2002, and 2009. (Id. at

¶ 68.) He testified that many of the reports reached

conclusions supportive of or similar to his own. (Id. at

¶ 69.) For example, the “1982 Groundwater Report”

stated, “In the vicinity of Gallatin Steam Plant, most

of the surface streams flow a short distance across

the ground, then disappear into sinkholes and drain

into underground channels in the limestone

bedrock.” (J. Ex. 44 at 35.)

65. The 1982 Groundwater Report also states

that “[w]ater-table elevations are probably within the

ash disposal pond.” (J. Ex. 44 at 35.)

66. The 1987 Groundwater Report similarly

acknowledges that the “[w]ater table is believed to be

within the waste pond.” (J. Ex. 45 at 27).

67. Groves’ review showed that during the early

years of the Ash Pond Complex’s operation, as TVA

does not appear to dispute, the complex suffered

significant leakage through hydrological connections

to the Cumberland River. (Doc. No. 227–1 (Groves

Wr. Test.) at ¶¶ 74–79.) By Groves’ estimate,

71a

between April 1970 and December 1978,

approximately 27 billion gallons of coal ash

wastewater flowed directly from the Ash Pond

Complex into the karst aquifer and then into the

Cumberland. (Id. at ¶ 79.)

68. Based on his review of TVA studies, Groves

believed that this early leakage was occurring

through some number of sinkholes—variously

reported from between 59, 101, and 111—but that

TVA had ultimately been unable to identify the

actual number of sinkholes that were leaking. (Id. at

¶ 86.)

69. In 1977, a TVA research engineer produced a

report titled “Magnitude of Ash Disposal Pond

Leakage Problem—Gallatin Steam Plant” (“1977

Leakage Memorandum”), which discussed TVA’s

understanding, at the time, of the leakage from the

pond. (J. Ex. 41.) The 1977 Leakage Memorandum

explains:

The actual number of sinkholes which are

presently leaking to the subsurface cannot be

determined without extensive field studies ....

Based on examination of topography of the

pond which was taken in 1952 (before the

impoundment of Old Hickory Lake), 1963 and

1977, several sink holes were wet weather

ponds or were termination points for streams

that flowed into the area now covered by the

pond. Therefore it is *791 likely that several

sink holes in the present ash disposal pond

leak to the subsurface.

If the present leaks from the pond were

72a

plugged and the water level in the pond rose

to the elevation of the outfall weir, one or

more of another 52 sink holes could begin to

leak. In addition, sink holes which are not

presently leaking could begin to leak because

of increased hydrostatic pressure.

From the previous discussion, it can be

concluded that the network of solution

cavities and crevices in the groundwater

system under the pond is extensive.

Therefore, identification of the sink holes

which presently leak to this system would

require extensive field studies. In addition,

plugging the presently leaking sinkholes

would give no assurance that other sink holes

would not begin to leak, as previously

discussed.

(Id. at TVGF_008091–92.)

70. Groves described steps taken to repair the

Ash Pond Complex after its early leakage. As Groves

described it, some sinkholes under the Ash Pond

Complex were plugged, which caused the water level

to rise to the outfall. The water rising, however, did

not demonstrate that all leaks had been eliminated.

The water level rising only meant that the inflow

rate into the ponds exceeded the outflow rate. That

outflow rate could still have included outflow

through karst drainage. (Doc. No. 227–1 (Groves Wr.

Test.) at ¶ 89.)

71. TVA’s 1992 Groundwater Report echoes the

conclusion that rising waters show only a reduction,

not necessarily an elimination, of leakage: “Following

73a

the plugging of several sinkholes in the northwest

end of the pond in 1978, the leakage rate was

reduced and a point source discharge was established

at the pond outfall.” (J. Ex. 47 at 5.)

72. Based on his review and the foregoing,

Groves opined that most of the conduits below the

Ash Pond Complex were never plugged or repaired

and that, accordingly, coal ash waste is still within

the groundwater and likely still flowing into the

river. That drainage, however, cannot be directly

seen because it is obscured by the coal ash waste

itself. (Doc. No. 227–1 (Groves Wr. Test.) at ¶ 90.)

73. Groves’ expert opinion was that, given the

hydrogeological conditions of Odom’s Bend, the

evidence of leakage into the Cumberland River, and

that groundwater on Odom’s Bend Peninsula is

expected to flow into the Cumberland River, any

suggestion that coal ash waste water is not currently

going to the Cumberland River, or is going anywhere

other than the Cumberland River, is implausible. (Id.

at ¶ 102.)

74. Groves performed an analysis based on

historical groundwater flow reports and maps, as

well as evidence from nearby ground wells,

purporting to demonstrate that there is a major

conduit and underground river parallel to, and north

of, the axis of the Ash Pond Complex, likely

terminating at a flow outlet into the Cumberland

River. (Id. at ¶¶ 116–26.)

75. Groves also opined that dewatering and

capping the ash disposal areas without a liner will

74a

not prevent contamination of groundwater or the

Cumberland River by coal ash waste, because such

steps would not eliminate ongoing drainage through

karst features. (Id. at ¶ 132.)

76. On cross examination, Groves admitted that

he had never personally been on the site of the

Gallatin Plant. (Doc. No. 234 (Tr. Day 1) at 53.)

77. Groves further conceded that, in some

portions of the Ash Pond Complex, there was a layer

of clay between the ash and the karst underneath.

(Id. at 65.)

78. TVA pointed out that a 2010 report created

for TVA by Stantec Consulting *792 Services Inc.

(“2010 Stantec Report”) (J. Ex. 67) included the

statement that “[t]he thickness of the native soils

above the bedrock across the pond complex range

from as little as about one foot or less to as much as

twenty feet.” (Doc. No. 234 (Tr. Day 1) at 66–67.)

Groves acknowledged the statement in the Report,

but argued that it was inconsistent with the Report’s

own data, which showed that there were some places

in the Ash Pond Complex where waste was in direct

contact with bare rock. (Id. at 67.) TVA also pointed

out select borings that showed substantial clay cover

at specific locations in the Ash Pond Complex. (Id. at

67–69.)

79. The 2010 Stantec Report also states that the

Gallatin Plant “ha[d] not experienced any known ...

karst-related problems within the ponds in recent

years” other than the following: an area designated

for the expansion of Pond E contained known

75a

sinkholes, which were mitigated during construction;

a recent rain event had revealed a sinkhole to the

north of Pond C; and in 1990, a sinkhole that had

previously been isolated by a dike was repaired. (Id.

at 70; J. Ex. 67 at 8.)

80. TVA’s cross examination also established that

there are a number of techniques and mechanisms

for identifying the relevant hydrogeology in karst

systems that Groves, who relied primarily on

historical documentation, did not rely on in this case.

(Doc. No. 234 (Tr. Day 1) at 81–86.) On re-direct,

Groves explained that he was confident in his

conclusions despite not having used such methods.

(Id. at 101.)

81. Finally, Groves admitted that the Non–

Registered site was not located atop karst features,

but

rather

alluvial

deposits,

defined

as

“unconsolidated sediment that has been deposited by

a surface stream or river.” (Id. at 55–57.)

82. Based on its direct observation of Groves’

demeanor, candor, and responsiveness, the Court

found Groves to be generally credible. The Court did,

however, evaluate Groves’ opinions in the context of

his having been retained by the Plaintiffs. His

opinions, moreover, were rendered somewhat less

persuasive because they were based primarily on his

review of past literature and general understanding

of karst terrains, rather than direct analysis of the

coal ash disposal areas themselves. That deficiency,

though relevant to the weight of his testimony, did

not wholly negate its persuasive and explanatory

value.

76a

2. Testimony of Mark Quarles

83. Mark Quarles is a Tennessee-licensed

professional geologist with a B.S. degree in

Environmental Engineering Technology from WKU.

He characterizes himself as a “[p]ublic interest

environmental consultant.” Quarles testified that he

has approximately thirty years of experience as an

environmental consultant, including a substantial

amount of experience consulting for industrial sector

clients. (Doc. No. 227–2 (Quarles Wr. Test.) at ¶¶ 1,

3, 5.)

84. Quarles’ consulting company, Global

Environmental, LLC, (“Global Environmental”) was

retained by Plaintiffs to evaluate the conditions of

the Gallatin Plant. (Id. at ¶ 1.)

85. Quarles testified that he has been trained in

and is experienced in taking samples to determine

the existence of and extent of contamination. (Id. at ¶

3.) He claimed extensive experience evaluating

groundwater movement in karst environments,

particularly in Middle Tennessee, including work

involving sinking creeks and sinkholes. (Id. at ¶ 5.)

86. Quarles also stated that he has many years of

experience conducting hydrogeological investigations

related to siting and design of municipal and

industrial waste landfills, developing closure plans

for industrial landfills, designing and implementing

*793 groundwater monitoring programs for

industrial landfills, completing investigations to

define the nature and extent of industrial

contamination in the environment, and completing

coal combustion waste investigations. He has

77a

performed coal combustion-related investigations at

over seventy sites located in twelve states. (Id. at ¶¶

6–7.)

87. The parties have stipulated and agreed that

Quarles is qualified as an expert by knowledge, skill,

experience, training, or education pursuant to

Federal Rule of Evidence 702. (Doc. No. 221.)

88. Quarles echoed Groves’ assessment that the

Sinking Creek stream valley rendered the area of the

Ash Pond Complex a poor choice for the disposal of

coal ash waste, due to its karst features and the

connectivity of the groundwater. (Doc. No. 227–2

(Quarles Wr. Test.) at ¶¶ 9–10.)

89. Quarles gave his opinion that both the Ash

Pond Complex and the Non–Registered Site contain

coal ash waste that extends below the groundwater

level. (Id. at ¶ 12)

90. Quarles testified that Global Environmental

was able, through visual inspection and manual

probing, to identify solid coal combustion wastes

several feet thick in the Cumberland River along the

shoreline of both the Ash Pond Complex and the

Non–Registered Site. (Id. at ¶ 18.)

91. Quarles’ review of historical maps yielded

conclusions similar to Groves’: that the Gallatin Plan

was built on an area of significant karst activity,

including sinkholes and sinking streams on the Plant

property. (Id. at ¶¶ 32–33.)

92. Quarles also echoed Groves’ conclusion that

78a

the Ash Pond Complex was constructed over a

sinking stream known as Sinking Creek. (Id. at ¶

34.)

93. Quarles also identified a large sinkhole

complex northeast of the Plant (“Neighboring

Sinkhole Complex”). (Id. at ¶ 33.) Quarles opined

that, because the Neighboring Sinkhole Complex

does not have an obvious resurgence point where any

flows reach the ground surface or discharge into a

surface water stream, the Neighboring Sinkhole

Complex may be connected by groundwater to the

Ash Pond Complex. (Id. at ¶ 40.)

94. Quarles discussed the larger drainage basin

from which natural precipitation runoff flows

through the main discharge channel from the Ash

Pond Complex and into the Cumberland River.

Quarles cited a 2013 TVA report (J. Ex. 71) for the

conclusion that the drainage basin is approximately

4,000 acres, with surface drainage flowing from at

least three miles to the North of the Gallatin Plant.

(Doc. No. 227–2 (Quarles Wr. Test.) at ¶ 41.)

95. For example, surface water overflow from the

Neighboring Sinkhole Complex flows across TVA

property, flows into a catch basin,2 and discharges

into the Ash Pond Complex. Quarles provided

photographic evidence appearing to depict offsite

drainage flowing into the Ash Pond Complex. (Id. at

¶ 43; J. Ex. 73 & 140.)

2 A catch basin is “a reservoir or well into which surface water

may drain off.” CATCH BASIN, Merriam–Webster Dictionary

(online ed. 2017).

79a

96. Global Environmental developed conceptual

models for both the Non–Registered Site and the Ash

Pond Complex, based on 1930 and 1952 topographic

maps and the sites’ pre-development ground

elevations. (Doc. No. 227–2 (Quarles Wr. Test.) at ¶

44.) Those models were presented in the form of

cross-sectional diagrams designed to demonstrate

certain features of the sites and relevant

hydrogeology. (J. Ex. 141 & 142.) The Court did not

construe the models as presenting literal, to-scale

representations of the ponds, but *794 rather as

conceptual illustrations intended to assist the Court

in its understanding of Quarles’ analysis.

97. Quarles testified that, although the

conceptual models relied on some information from

1930 and 1952, he believed them to accurately reflect

current conditions, in particular with regard to the

elevation of the underlying bedrock and the level of

the river. Quarles testified that he would not expect

those values to have changed in the relevant

intervening years. (Doc. No. 235 (Tr. Day 2) at 9–10.)

98. The conceptual model of the Ash Pond

Complex depicts, among other things, waste escaping

through sinkholes in the bottom of the pond into a

conduit flow through the underlying limestone. The

model also illustrates coal ash waste below the

groundwater elevation as of May 23, 2012. (J. Ex.

141.)

99. The conceptual model of the Non–Registered

Site depicts submerged coal ash waste below the

groundwater level, and groundwater passing through

80a

the Site to the Cumberland River. (J. Ex. 142.)

100. Quarles’ conceptual analysis concluded that

the area’s elevated aquifer, the hydraulic

connectivity of the underlying bedrock to the

Cumberland River, and the original ground

topography have resulted in solid wastes in both

disposal areas that are saturated under natural

groundwater and river water flow conditions. (Doc.

No. 227–2 (Quarles Wr. Test.) at ¶ 45.) Quarles

testified that his review of TVA’s historical studies

substantiates the conclusions of his conceptual

models, in particular his conclusions that ash is

buried within the groundwater at both the Ash Pond

Complex and the Non–Registered Site; that the

groundwater is hydrologically connected to the

Cumberland River; and that TVA has discharged and

will continue to discharge pollutants from the waste

to the river. (Id. at ¶ 61.)

101. Quarles cited the 2010 Stantec Report (J.

Ex. 67) and more recent studies performed for TVA

by Arcadis U.S., Inc., (“2014 Arcadis Report”) (J. Ex.

59) as supporting his conclusion that both the Ash

Pond Complex and Non–Registered Site contain coal

combustion wastes that are saturated with water.

(Doc. No. 227–2 (Quarles Wr. Test.) at ¶¶ 71–72.)

The 2010 Stantec Report based its analysis on a

geotechnical exploration plan involving borings at

more than thirty locations. (J. Ex. 67 at 8.) The 2014

Arcadis Report assessed the Non–Registered Site

through a combination of groundwater monitoring

wells, soil data, and other hydrogeologic information.

(J. Ex. 59 at TVGF_004702.)

81a

102. According to Quarles, that the Non–

Registered Site still contains saturated ash forty-five

years after waste placement ended demonstrates

that groundwater continues to recharge the wastes

from topographically and hydraulically upgradient

areas that flow into the wastes. (Doc. No. 227–2

(Quarles Wr. Test.) at ¶ 121.)

103. According to Quarles, Arcadis concluded

that contaminated groundwater discharges into the

Cumberland River along the Non–Registered Site

shoreline. (Id. at ¶ 100.)

104. The 2014 Arcadis Report includes a figure

titled “Site–Wide Potentiometric Contours” that

depicts the “Inferred Flow Direction” of groundwater

on Odom’s Bend Peninsula. (Id. at ¶ 74 (citing J. Ex.

59 at TVGF_004759 (Fig. 7)).) The figure depicts

water flowing from a high point in the center-east of

the peninsula toward the river, including passage

through both the Ash Pond Complex and the Non–

Registered Site areas. The groundwater flows

depicted include the flow of water through the Ash

Pond Complex area toward a location near or

upstream from the sediment sampling locations

identified below as East Side 1 and East Side 2. (J.

Ex. 59 at *795 TVGF_004759 (Fig. 7).) Groundwater

is also depicted as flowing through the Non–

Registered Site in the direction of points near or

upstream from the sediment sampling locations

identified below as NRS 1 through NRS 6. (Id.)

105. Quarles also summarized the 2014 Arcadis

Report’s conclusions regarding the Non–Registered

Site. Quarles interpreted the Report as concluding

82a

that coal ash waste constituents, often in high

concentrations, remain in the Non–Registered Site,

migrating towards and beneath the main channel of

the Cumberland River. (Doc. No. 227–2 (Quarles Wr.

Test.) at ¶¶ 80–81.)

106. On cross examination, however, Quarles

conceded that the 2014 Arcadis Report concluded

that the uppermost groundwater at the Non–

Registered Site occurred in alluvial deposits and

residuum soil, not in ash. Quarles explained the

conflict between his analysis and Arcadis’s as a

result of Arcadis having relied on wells around the

perimeter of the area, whereas his model relied on

wells and borings through the ash. (Doc. No. 234 (Tr.

Day 1) at 197–98.)

107. Quarles also conceded that the 2010 Stantec

Report had stated that the Plant “ha[d] not

experienced any known additional karst-related

problems in recent years.” (Id. at 200.)

108. Quarles identified a March 2015 PowerPoint

presentation by TVA contractor AECOM stating that

“[a] portion of the ash [in Ash Pond E] is below (up to

10 feet below) the elevation of the Cumberland

River.” (Doc. No. 227–2 (Quarles Wr. Test.) at ¶ 73

(citing J. Ex. 113 at 7).) The presentation also

acknowledges the possibility that the Pond could be

hydrologically connected to the river, and specifically

cites the possibility of karst activity, including

sinkholes. According to the slide, if the Pond is

hydrologically connected to the river, it would be

effectively impossible to wholly dewater the Pond

due to that connection. (J. Ex. 113 at 7.)

83a

109. Quarles evaluated TVA’s groundwater

monitoring program. Although he identified a

number of what he considered deficiencies in the

program, he nevertheless concluded that TVA’s

monitoring

had

demonstrated/corroborated

contamination of the groundwater with coal ash

waste. (Doc. No. 227–2 (Quarles Wr. Test.) at ¶¶ 83–

98.)

110. Quarles and Global Environmental also

conducted a field investigation, with the cooperation

of Barry Sulkin and others. (Id. at ¶ 46.) Quarles and

others inspected the shoreline of the Cumberland

River along the Gallatin Plant peninsula, looking for

signs of coal and coal combustion waste, targeting

portions of the shoreline that were (1) hydraulically

downgradient of groundwater flow from ash disposal

areas; (2) along bedrock joint trend lines that could

be preferential groundwater flow pathways; (3)

former valleys and hollows that are now fully or

partially submerged by the impounded Cumberland

River; and/or (4) areas of past impoundment dike

failures. (Id.)

111. Global Environmental performed boat-based

inspections of identified target sites, including

sediment and water sampling, in October 2014 and

August 2015. Quarles testified chiefly about the

sediment sampling, leaving Barry Sulkin to discuss

the water sampling. (Id. at ¶ 50.)

112. Quarles identified fourteen sampling

locations, which he characterized as follows:

84a

• East Side 1—We observed a diffuse flow

spring located on the eastern peninsula at a

public boat ramp along the shoreline of the

Cumberland River. This site is hydraulically

downgradient of the eastern portion of Ash

Pond A and along the secondary bedrock joint

pattern, and is located *796 in a preimpoundment valley. The sample was

collected from an opening in a submerged

channel in fill material.

• East Side 2—We observed a diffuse flow

spring also located on the eastern peninsula

at the shoreline of the Cumberland River.

This site is downgradient of the northeastern

portion of Ash Pond A along the secondary

bedrock joint pattern and is in the vicinity of

former (apparently closed or no longer

sampled) well GAF 13—a well with

demonstrated

coal

combustion

waste

constituents and up to 2,100 mg/L sulfate.

The sample was collected where the spring

flows into the river.

• Barton’s Creek Reference—This sample

site is located off TVA property south of the

Cumberland River along the shoreline of

Barton’s Creek, an upstream tributary of the

Cumberland River. The shoreline sediment

sample was collected at the Barton’s Creek

Boat Ramp, a public boat ramp on the

tributary to Old Hickory Lake, located off of

Coles Ferry Pike.

• NRS 4—This shoreline sediment sample

was collected from the small southerly

85a

embayment adjacent to the NRS. It was

collected outside of the submerged zone but

below the high water mark of the river and

within approximately 1 foot of the waterline

of the Cumberland River.

• NRS 3—This submerged sediment sample

was collected approximately 50 feet from the

shoreline (approximately 3–foot water depth)

from the same southerly embayment adjacent

to the NRS. It consisted of an undetermined

mixture of black sludge-like material and

mud sediments that was at least 2 feet thick.

• NRS 2—This shoreline sample was

collected from the southerly embayment

adjacent to the NRS, but from the area

nearest well 27. It consisted of a coarse,

reddish-brown to black, clayey sand. It was

collected outside of the submerged zone but

below the high water mark and within 1 foot

of the waterline of the Cumberland River.

•

NRS

1—This

submerged

sample

(approximately 3–foot water depth) was

collected in the northerly embayment

adjacent to the NRS, located approximately

10 feet from the shoreline. Consisted of an

undetermined mixture of black sludge-like

material and mud sediments that was at least

2 feet thick.

• APC 1—This western shoreline sample was

collected adjacent to a rip-rap3 repair of Ash

“Rip-rap” or “riprap” is “a foundation or sustaining wall of

stones or chunks of concrete thrown together without order (as

3

86a

Pond E. It was collected outside of the

submerged zone but below the high water

mark of the Cumberland River.

•

APC

4—This

submerged

sample

(approximately 3–foot water depth) was

collected approximately 75 feet from the

shoreline adjacent to Ash Pond E. It consisted

of black sludge-like material that was at least

2 feet thick.

•

NRS

5—This

submerged

sample

(approximately 3–foot water depth) was

collected from the northerly embayment near

“NRS 1” sample. It is located approximately

60 feet from the shoreline near the barge

unloaded conveyor belt. The sample consisted

of black sludge-like material.

*797 • NRS 6—This submerged sediment

sample was collected approximately 20 feet

from the shoreline (approximately 1.5 foot

water depth) of the NRS. It consisted of a

black sludge-like material that was at least 4

feet thick.

• APC 2—This submerged sediment sample

was collected approximately 40 feet from the

shoreline of the Ash Pond Complex

(approximately 3 to 4 feet of water). It

consisted of a black sludge-like material that

was approximately 2 feet thick.

• NRS 1a—This submerged sediment sample

in deep water).” RIPRAP, Merriam–Webster Dictionary (online

ed. 2017).

87a

was collected approximately 50 feet from the

eastern shoreline (approximately 3 to 4 feet of

water) of the northwest corner of the NRS and

south of the Ash Pond Complex barge

conveyor. It consisted of a black sludge-like

material that was at least 2 feet thick.

• NRS 4a—This submerged sediment sample

was collected from the small embayment

along the south end of the NRS

(approximately 1.5 feet of water). It consisted

of black sludge-like material that was mixed

with tan silt. The black sludge was at least 2

feet thick.

(Id. at ¶ 51.) The locations of the sampling sites were

identified for the Court on the Agreed Map filed by

the parties for use at trial, as were the locations of

the ten seeps referred to in the complaint in the

State Enforcement Action. (Doc. No. 220–1.) APC 1,

APC 2, and APC 4 were in the general vicinity of two

seeps at issue in the State Enforcement Action. (Id.)

113. The samples were analyzed for constituents

considered to be good indicators of the presence of

coal ash waste. Quarles conceded that the sampling

program was designed to identify the presence of

contamination, not to measure the extent of that

contamination. (Doc. No. 227–2 (Quarles Wr. Test.)

at ¶ 55.)

114. Quarles testified that constituents that are

commonly associated with coal combustion wastes

were detected in all solid waste and sediment

samples that were collected from the eastern,

southern, and western portions of the peninsula.

88a

Those indicators included silicon, boron, manganese,

sulfate, iron, aluminum, barium, calcium, chromium,

strontium, arsenic, chloride, cobalt, lithium,

selenium, sodium, and sulfur. (Id. at ¶ 57.)

115. By way of example, East Side 1—located to

the east of Ash Ponds A and B, not in the vicinity of

any of the ten seeps mentioned in Tennessee’s State

Enforcement Action complaint—exhibited what

Quarles identified as elevated levels of aluminum,

barium, boron, lithium, sodium, strontium, and

sulfur. Among other chemicals, East Side 1 showed a

boron concentration of 52 mg/kg, whereas the

Bartons Creek Reference sample showed a boron

concentration of <1.3 mg/kg. (Id. at ¶ 58.)

116. East Side 2—located downstream from East

Side 1 and to the southeast of Ash Pond A, not in the

vicinity of any of the ten seeps mentioned in

Tennessee’s State Enforcement Action complaint—

exhibited what Quarles identified as elevated levels

of aluminum, barium, boron, chromium, iron,

lithium, manganese, and strontium. For example,

the Bartons Creek Reference sample showed a

manganese concentration of 360 mg/kg, whereas

East Side 2 showed a manganese concentration of

700 mg/kg. (Id.)

117. NRS 4—located immediately adjacent to the

Non–Registered Site, not in the vicinity of any seep

mentioned in the State Enforcement Action

complaint—exhibited what Quarles identified as

elevated levels of arsenic, barium, boron, iron, sulfur,

and sulfate. For example, the Bartons Creek

Reference sample showed an iron concentration *798

89a

of 26,000 mg/kg, whereas NRS 4 showed an iron

concentration of 230,000 mg/kg. (Id.)

118. The other sampling locations similarly

showed what Quarles identified as elevated levels of

chemicals tending to indicate the presence of coal ash

waste. The particular chemicals present in elevated

levels and not present in elevated levels varied from

location to location. (Id.) Boron, however, was

present at elevated levels in all of the Gallatin Plant

shoreline sediment samples, but was virtually

nonexistent in the Bartons Creek Reference sample.

Arsenic concentrations from the TVA shoreline

samples were higher than the reference sample in

over two-thirds of the on-site sediment samples. (Id.

at ¶ 59.)

119. Sulfate concentrations from TVA shoreline

samples were, in some instances, up to 180 times

higher than the reference sample. Sulfur

concentrations from TVA shoreline samples were, in

some instances, up to 15 times higher than the

reference sample. Iron concentrations from TVA

shoreline samples were, in some instances, up to 10

times higher than the reference sample. (Id.)

120. Quarles also presented February 2015 aerial

photography depicting reddish-brown coloration in

the Cumberland River adjacent to the Non–

Registered Site. Quarles testified that such

coloration can be indicative of coal combustion waste

contaminants. (Id. at ¶ 49 & J. Ex. 78.)

121. Quarles concluded, based on the sediment

sampling, that coal ash waste has been released from

90a

the Gallatin Plant at areas adjacent to both the Ash

Pond Complex and the Non–Registered Site. (Doc.

No. 227–2 (Quarles Wr. Test.) at ¶ 60.)

122. Quarles testified that he had reviewed and

agreed with the written testimony of Groves and

Sulkin. (Doc. No. 235 (Tr. Day 2) at 7.).

123. On cross examination, Quarles conceded

that his sampling could not determine how long the

materials he obtained had been in the river or how

they reached the river. (Doc. No. 234 (Tr. Day 1) at

186.)

124. Quarles also conceded that the flows he

observed at East Side 1 and 2 were exiting to the

river through porous soil, as opposed to a bedrock

conduit visible from his vantage point. (Id. at

186ï87.) He further conceded that he had previously

referred to those locations as “seeps.” (Id. at 187-88.)

125. Regarding the Non–Registered Site, Quarles

conceded that sampling locations NRS 2 and 6 were

in the vicinity of a documented 1974 escape of coal

ash. (Id. at 191.)

126. TVA also directed Quarles to a 1978 TVA

memorandum discussing the repairs to the leaking

Ash Pond Complex, which stated, “No correlation

between the [water] levels or with rainfall could be

found since early June 1978, apparently indicating

that no hydraulic connection between the pond and

the river presently exists. Similar data obtained for

August 1977 (prior to the repair work) showed a

strong correlation between pond and lake water

91a

levels.” (J. Ex. 89 at TVA_GAF_0011333.) Quarles

conceded that he did not include that conclusion in

his testimony. (Doc. No. 234 (Tr. Day 1) at 207.).

127. Similarly, a 1979 letter from the Director of

Power Production for either TVA or the Plant,

describing the 1978 repairs, claimed that “all the

holes or low areas where leakage might be suspected

were filled with either rock and clay or coarse ash or

a combination of these materials,” and that

ultimately “the progressive rising of the water ...

leads us to believe the complete sealing of the pond

has

been

achieved.”

(J.

Ex.

88

at

TVA_GAF_0011330.) The same letter did, *799

however, acknowledge the need to “closely watch the

pond for any signs of further leakage.” (Id. at

TVA_GAF_0011331.) Quarles conceded that he did

not acknowledge the letter’s assessment in his

testimony. (Doc. No. 234 (Tr. Day 1) at 207.). On redirect, he went into more detail and echoed Groves’

assessment that the 1978 repairs would have been

inadequate to prevent additional sinkholes from

forming. He also suggested that water could

potentially bypass the repairs. (Doc. No. 235 (Tr. Day

2) at 20–21.).

128. Finally, Quarles conceded that he had, in

the past, used derogatory language to refer to TVA

and its attitude toward its environmental

stewardship, including characterizing one TVA

statement as suggesting TVA personnel were

“[e]ither ... idiots or ... lying.” (Doc. No. 234 (Tr. Day

1) at 214.) TVA also sought to undermine Quarles’

credibility with citation to details surrounding other

litigation in which he was involved, but, without

92a

sufficient context, the Court was unable to give

significant weight to that evidence. (Id. at 220–28.)

129. Based on its direct observation of his

demeanor, candor, and responsiveness, the Court

found Quarles to possess some credibility, albeit with

the caveats that (1) the Court considered his opinions

in the context of his having been retained by

Plaintiffs in this matter, and (2) the Court

acknowledges

Quarles’

apparent

history

of

frustrations with and hostility toward TVA. The

Court also notes that TVA demonstrated that

Quarles’ testimony failed to cite some aspects of

TVA’s historical studies and records that could be

read as undermining aspects of his conclusions.

Quarles’ omissions, though relevant to the credibility

and completeness of his opinions, did not wholly

undermine his conclusions. Given the extensive

nature of TVA’s historical documentation, it is not

necessarily fatal that his analysis failed to include all

relevant citations.

130. TVA did not significantly undermine or

contradict Quarles’ testimony that his sediment tests

established

the

presence

of

heightened

concentrations of chemicals associated with coal ash

waste.

3. Testimony of Vojin Janjic

131. Vojin Janjic is a manager of the water-based

systems unit of TDEC. Janjic’s responsibilities

include overseeing the preparation and review of

NPDES permits. (Doc. No. 235 (Tr. Day 2) at 30–31.).

132. Janjic received his chemical engineering

93a

degree from the University of Belgrade before

studying environmental and water resources at

Vanderbilt University. After completing his

education, Janjic began work at TDEC, where he did

field work for four years before moving to the

agency’s central office. (Id. at 31.)

133. Janjic testified that he has been involved in

the evaluation and issuance of thousands of NPDES

permits. (Id. at 33.)

134. Janjic described the permitting process for

NPDES permits issued to individual permittees. The

applicant first submits an application based on EPAdesigned forms providing the required information to

begin the permit application process. TDEC then

prepares a draft permit, which it publishes publicly

for comments. A permit is accompanied by a permit

rationale, a separate document that explains TDEC’s

process and reasoning for the terms of the permit. If

there are public comments in response to the draft

permit, TDEC issues an addendum to rationale,

which summarizes and responds to the comments,

and makes any permit revisions that it deems

necessary or justified based on the comments. (Id. at

33–34.)

135. Janjic testified that the rationale and

addendum to rationale do not modify *800 the terms

of the permit. Rather, they merely describe the

process and basis for the permit. (Id. at 35.) On cross

examination, in particular, Janjic repeatedly

stressed that the addendum to rationale was distinct

from the permit and was not itself an “enforceable”

legal document, but rather merely an explanation of

94a

the reasoning and process behind the actually

enforceable terms of the permit. (Id. at 56.)

136. The Gallatin Plant’s most recent NPDES

Permit went into effect on July 1, 2012, and was set

to expire on May 31, 2017. (J. Ex. 102 at 001.) Its

previous permit had gone into effect on January 1,

2006, and was set to expire on November 29, 2009 (J.

Ex. 136 at TSRA–GAF011526), but the terms of the

permit were administratively continued from

November 29, 2009, until the effective date of the

2012 permit (Doc. No. 235 (Tr. Day 2) at 38).

137. Janjic was involved in reviewing TVA’s

permit renewal application for the Gallatin Plant, as

well as drafting the permit itself. (Id. at 36.)

138. Janjic described generally the waste

treatment anticipated to be performed at the Ash

Pond Complex under the permit. Water mixed with

coal ash waste is sluiced to the Complex. As it passes

through the Complex, a process of settling occurs,

whereby coal ash constituents settle out of the water.

Finally, water is released at Outfall 001—the only

outfall identified by the NPDES permit as being

authorized for the discharge of coal ash wastewater.

(Id. at 39–40.) Neither the 2012 nor the 2005 version

of the permit authorizes discharge of coal ash

wastewater from anywhere other than Outfall 001.

(Id. at 41–42, 48.)

139. It is undisputed that the leaks and seeps at

issue in this case are not discharges from Outfall

001.

95a

140. Janjic was asked how, if at all, the 2012

permit addresses the issue of seeps. Janjic pointed to

a

section

of

the

permit

labeled

“Other

Requirements,” and its subsection labeled “Dike

Inspections.” (J. Ex. 102 at 025.) That subsection

requires daily inspections including “observations of

dams, dikes, and toe areas for obvious changes in

erosion, cracks, or bulges, subsidence, seepage, wet

or soft soil, changes in geometry, the depth in the

elevation of the impounded water, sediment or

slurry, freeboard, changes in vegetation such as

overly lush, obstructive vegetation and trees, outlet

controls, drains, and any other further changes

which may indicate a potential compromise to

impoundment integrity.” (Id. at 026.) Janjic

characterized this requirement as at least in part

directed toward identifying and addressing seeps. He

explained that seeps raise two sets of concerns: first,

that they could signify a compromise of the

structural integrity of the impoundment; and second,

that the seeps themselves could negatively affect

water quality. (Doc. No. 235 (Tr. Day 2) at 43ï45.)

141. The 2012 permit requires TVA to begin

remediation procedures within twenty-four hours of

discovering changes that indicate a potential

compromise of the structural integrity of the

impoundment. (J. Ex. 102 at 026.)

142. The 2006 permit was less demanding with

regard to self-inspection, requiring TVA only to

visually inspect the dikes for seepage on at least a

quarterly basis. (J. Ex. 136 at TSRA–GAF011550.)

143. Janjic was asked whether he considered

96a

either permit to authorize discharges from seeps. He

responded first that the permit speaks for itself, but

added that the permits do not permit any “discharges

from seeps that would be discernible flow of water.”

(Doc. No. 235 (Tr. Day 2) at 46–48.)

144. Janjic did testify, however, that “[e]very

impoundment that is not [a] lined impoundment is

going to have a certain *801 amount of seepage ....

So we realize that any earthen impoundment[s] are

going to have a certain amount of seepage.” Janjic

added, though, that “that seepage per se is not

authorized or identified in an NPDES permit.” (Id. at

48.)

145. On cross examination, Janjic confirmed

that, when the 2012 permit was issued, TDEC was

aware that the Ash Pond Complex experienced seeps.

(Id. at 55.)

146. Janjic testified that the anticipated seepage

to which he referred did not include flows through

sinkholes and fissures. (Id. at 49.) He testified that

the seepage foreseen at the time of the 2012 permit’s

issuance was de minimis, with inconsequential

impacts. (Id. at 62.)

147. Janjic was asked about Part I.A(c) of the

2012 permit, which addresses removal of sludge or

other materials removed from treatment works. (J.

Ex. 102 at 011.) He confirmed that the “sludge”

referred to included coal ash that settled as part of

the ash pond process, and that the 2006 permit

contained a similar provision. (Doc. No. 235 (Tr. Day

2) at 49–50.)

97a

148. Janjic was next asked about the sanitary

sewer overflow provision of the 2012 permit, Part

II.C(3.b). (J. Ex. 102 at 022.) Janjic explained that, in

the context of the Gallatin Plant, that provision

referred to “any wastewater at the facility that is

authorized by this permit.” (Doc. No. 235 (Tr. Day 2)

at 51–52.) He conceded that the definition of the

term as used in the Gallatin Plant’s permit differs

from the definition used in the EPA’s NPDES Permit

Writers’ Manual (J. Ex. 251), which is narrower.

(Doc. No. 235 (Tr. Day 2) at 265.)

149. On cross examination, Janjic was asked

about the Non–Registered Site. Janjic testified that

the Non–Registered Site and the closed ash disposal

area therein are “not a part of the NPDES permit.”

(Id. at 57.) He agreed, though, that if the Non–

Registered Site hypothetically discharged pollutants

into navigable waters, that discharge would need to

be authorized by TDEC. (Id. at 57–58.)

150. The 2012 addendum to rationale, in

response to a comment, states, “Seepage is more

similar to a nonpoint source discharge, as it is

diffused over a wide area.” It is difficult to tell from

the statement whether TDEC is referring to seepage

from the Ash Pond Complex, seepage from the Non–

Registered Site, or seepage generally. (J. Ex. 102 at

048.)

151. Based on its direct observation of his

demeanor, candor, and responsiveness, the Court

found Janjic to be credible and to credibly present his

understanding of TVA’s permits and the permitting

98a

process.

4. Testimony of Barry Sulkin

152.

Barry

Sulkin

is

a

self-employed

environmental consultant. He holds a B.A. from the

University of Virginia with a major in

Environmental

Science,

and

an

M.S.

in

Environmental

Engineering

from

Vanderbilt

University. Sulkin has worked as a consultant for

over twenty-five years, prior to which he held several

positions at the Tennessee Department of Health and

Environment (now TDEC), including statewide

manager of enforcement investigations for the

Division of Water Pollution Control. (Doc. No. 161–1

(Sulkin CV) at 1–3.) He has amassed numerous

publications on topics related to water pollution. (Id.

at 5–9.)

153. Sulkin testified that he has significant

experience and expertise in collecting and evaluating

water samples. (Doc. No. 227–3 (Sulkin Wr. Test.) at

¶¶ 11–12.)

154. He also has significant training and

experience related to the NPDES permitting system.

(Id. at ¶¶ 13–14.)

155. Sulkin was retained by Plaintiffs to perform

water and sediment sampling, as *802 well as

provide his opinion, in this case. (Id. at ¶ 1.)

156. The parties have stipulated and agreed that

Sulkin is qualified as an expert by knowledge, skill,

experience, training, or education pursuant to

Federal Rule of Evidence 702. (Doc. No. 221.)

99a

157. Sulkin took part in the collection of water

and sediment samples on various dates from May 7,

2014, to August 3, 2016. He testified that all samples

were collected in accordance with standard and

customary state and EPA protocols for investigating

leaking waste or unpermitted discharges. Samples

were collected in laboratory-provided containers,

with supplied preservatives included as specified by

the lab. (Doc. No. 227–3 (Sulkin Wr. Test.) at ¶¶ 18–

19.)

158. The purpose of Sulkin’s sampling was to

identify the existence and composition of leaks—not,

for example, to determine the ambient water quality

of the Cumberland River as a whole. Accordingly,

samples were taken at locations close to the

suspected leaks. Sulkin identified this as the proper

protocol for his stated objective. (Id. at ¶ 21.)

159. Sampling locations were identified by

analysis of historic maps and drainage patterns, as

well as visual observations and conductivity

readings. Conductivity—that is, the ability of water

to pass an electrical current—is an indication of

mineral or pollutant content of water, and commonly

used as a reliable scientific method to identify

potential areas of contamination such as from the

ash disposal areas. Sulkin described the visual

observations that led to sampling as the presence of

an observable flowing discharge, wet soil, and

discolored water or sediment. (Id. at ¶¶ 33–36.)

160. Sulkin testified that background or

uncontaminated areas generally have conductivity in

100a

the range of 50 to 250 ǍS/cm,4 while water

contaminated by an ash waste discharge would have

conductivity of greater levels. (Id. at ¶ 38.)

161. Sulkin’s characterization of the relationship

between an NPDES permit and its rationale

mirrored Janjic’s: in particular, that the permit is

binding and not modified by the rationale. (Id. at ¶

61.)

162. Sulkin first discussed sampling he

performed at locations identified as APC 1 and APC

2. APC 1 and 2 are on the western bank of the

peninsula adjacent to Pond E, near two seeps

identified as part of the State Enforcement Action.

(Id. at ¶ 62.) Sulkin has provided a photo of APC 2 (J.

Ex. 10) that he characterizes as depicting a discharge

into the river. (Doc. No. 227–3 (Sulkin Wr. Test.) at ¶

63.)

163. As part of his sampling, Sulkin took a

baseline conductivity reading at a location across the

river, away from any alleged coal ash discharges, and

found a conductivity of 209 Ǎs/cm. The conductivity

at APC 1 was 768 Ǎs/cm, and at APC 2 was 1,019

Ǎs/cm. (Id. at ¶¶ 63–64.) Later testing showed still

elevated, but lower, conductivity levels. (Id. at ¶ 65.)

164. Eventually, after Plaintiffs filed their 60–

day notice of violation in this case, TVA apparently

covered the allegedly visible discharge at APC 2 with

rip-rap. Sulkin’s expert opinion was that this

4 Microsiemens per centimeter. A Siemens is a unit of electric

conductance. SIEMENS, Merriam–Webster Dictionary (online

ed. 2017).

101a

coverage did not stop the discharges, but instead

merely made them harder to document and observe.

(Id. at ¶¶ 66–67.) Testing showed continued elevated

conductivity near the rip-rap cover. (Id. at ¶ 67.)

When cross-examined about his assessment of the

addition of the rip-rap, however, Sulkin conceded

that he was not a professional engineer. (Doc. No.

235 (Tr. Day 2) at 122.)

*803 165. Sulkin tested a third site in that

general vicinity, APC 3. APC 3 was further from the

shore and corresponded with a cloudiness and white

coloration observed by Sulkin. (Doc. No. 227–3

(Sulkin Wr. Test.) at ¶ 65.)

166. Constituent testing from APC 1, 2, and 3

showed numerous chemicals suggestive of coal ash

contamination at levels above background values,

including several at APC 2 that exceeded TDEC’s

Domestic Water Supply Criterion. (Id. at ¶ 71; Pl. Ex.

1.) Background values were calculated using the

average values of publicly available state data from

two water quality monitoring stations located 19.9

miles upstream of the Gallatin Fossil Plant. (Doc.

No. 227–3 (Sulkin Wr. Test.) at ¶ 71.) TDEC has

conducted regular testing to determine the ambient

water quality of the Cumberland River, including the

Old Hickory Lake area. (Id. at ¶ 41.)

167. A May 7, 2014 sample from APC 1 showed

the following contaminants at levels elevated

compared to background: chloride, cobalt, iron,

manganese, nickel, sulfate, and vanadium. An APC 2

sample from the same date showed elevated levels of

chloride, cobalt, iron, manganese, nickel, and sulfate.

102a

(Id. at ¶ 74.)

168. An August 25, 2014 sample from APC 2

showed even greater evidence of contamination, with

elevated levels of aluminum, arsenic, barium,

cadmium, calcium, chloride, chromium, cobalt,

copper, iron, lead, magnesium, manganese, nickel,

selenium, sodium, sulfate, thallium, vanadium, and

zinc. Of these, arsenic, barium, cadmium, lead,

nickel, selenium, and thallium all exceeded TDEC’s

Domestic Water Supply Criterion. (Id. at ¶¶ 76–77.)

169. For example, water upstream from the plant

showed an average arsenic concentration of 0.00045

mg/L. The Domestic Water Supply Criterion for

arsenic is 0.01 mg/L. Sampling at APC 2 on August

25, 2014, showed arsenic at a concentration of 0.13

mg/L, thirteen times the criterion level. (Pl. Ex. 1.)

170. At sample location APC 3 on August 25,

2014, the following parameters exceeded background

levels: aluminum, arsenic, barium, cadmium,

chloride, chromium, cobalt, copper, iron, lead,

magnesium, manganese, molybdenum, sodium,

sulfate, and zinc. (Doc. No. 227–3 (Sulkin Wr. Test.)

at ¶ 78.)

171. Most recently, on August 3, 2016, a sample

collected adjacent to the rip-rap that had been placed

over top of the visible discharge identified as location

APC 2 contained the following parameters above

background: aluminum, antimony, arsenic, barium,

calcium, chloride, cobalt, copper, iron, lead,

manganese, nickel, sodium, sulfate, vanadium, and

zinc. (Id. at ¶ 79.)

103a

172. Samples taken from East Side 1 and East

Side 2 also showed elevated levels of several

contaminants. An August 25, 2014 sample from East

Side 1 showed concentrations of the following

contaminants in excess of the average upstream

background levels: aluminum, arsenic, barium,

calcium, chloride, chromium, cobalt, copper, iron,

lead, magnesium, manganese, molybdenum, nickel,

sodium, sulfate, vanadium, and zinc. Compared to

background levels, a sample taken from East Side 2

on the same date showed elevated levels of arsenic,

calcium, chloride, manganese, and molybdenum. (Pl.

Ex. 1.)

173. For example, the East Side 1 sample showed

an arsenic concentration of 0.0019 mg/L, over four

times the background average of 0.00045 mg/L. The

East Side 2 sample showed an arsenic concentration

of 0.001 mg/L, over twice the average upstream level.

(Id.)

174. Sulkin testified that, in his expert opinion,

the surface water samples and the sediment samples

from the waters adjacent *804 to the Ash Pond

Complex demonstrate continuing leakage from the

ash storage facilities at the Ash Pond Complex. (Doc.

No. 227–3 (Sulkin Wr. Test.) at ¶ 83.)

175. He also testified that, in his expert opinion,

this leakage is not the result of a slow seep from the

walls of the ash ponds, but rather is the continuing

flow of drainage and waste water through the

natural drainage channel of Sinking Creek and

outlets of the former Sinking Creek embayment of

104a

the lake, as well as through discharge of

contaminated groundwater to the river. (Id. at ¶ 84.)

On cross examination, however, Sulkin conceded that

he was not a geologist or expert on karst. (Doc. No.

235 (Tr. Day 2) at 112.)

176. Sulkin testified that he considered the leaks

from the Gallatin Plant’s coal ash storage facilities to

be a significant threat to public drinking water,

because there is a drinking water facility a mile and

a half down river from the Plant. (Doc. No. 227–3

(Sulkin Wr. Test.) at ¶ 86.) He also testified that the

Old Hickory Lake area is heavily used for recreation.

(Id. at ¶ 40.)

177. In addition to the sampling from the

Cumberland River, Sulkin reviewed groundwater

monitoring

reports

from

four

groundwater

monitoring wells in the vicinity of the Ash Pond

Complex, identified as wells 17, 23, 24, and 25. (Id. at

¶ 92.) Sulkin testified that, based on TVA’s reports,

all four of these wells are downgradient of the

groundwater flow from the Ash Pond Complex. (Id.

at ¶ 94.)

178. Sulkin testified that TVA’s historical

groundwater monitoring data showed elevated levels

of several chemical indicators in each of the wells.

(Id. at ¶¶ 94–97; see Pl. Ex. 2.)

179. Sulkin, TVA, and TDEC took part in joint

sampling of the wells in July and September of 2015.

This testing also showed elevated contaminant levels

that, in Sulkin’s opinion, were indicative of

groundwater contamination. (Doc. No. 227–3 (Sulkin

105a

Wr. Test.) at ¶ 98; see Pl. Ex. 3.)

180. Data from offsite drinking wells was, in

Sulkin’s analysis, similarly corroborative of

groundwater contamination. (Doc. No. 227–3 (Sulkin

Wr. Test.) at ¶¶ 103–08; see Pl. Ex. 3.)

181. Like Quarles, Sulkin testified that aerial

photography of the Cumberland River near the Non–

Registered Site showed coloration indicative of coal

ash contamination. (Doc. No. 227–3 (Sulkin Wr.

Test.) at ¶ 115.)

182. In February of 2015, Sulkin performed

water and sediment sampling at NRS 1 and NRS 4,

adjacent to the Non–Registered Site. He sampled

NRS 4 and NRS 6 in August of 2016. (Pl. Ex. 1.)

Sulkin compared the constituent levels in the water

samples to the same upstream values he used for his

analysis of the samples taken from adjacent to the

Ash Pond Complex. (Doc. No. 227–3 (Sulkin Wr.

Test.) at ¶ 122.)

183. NRS 1, 4, and 6 all had several

contaminants in concentrations greater than the

upstream average. The 2015 NRS 4 sample also had

lead in a concentration exceeding the domestic water

supply criterion. (J. Ex. 1.)

184. The 2015 NRS 4 sample showed the

following contaminants at levels above the

comparison level: aluminum, arsenic, barium,

beryllium, calcium, chromium, cobalt, copper, iron,

lead, magnesium, manganese, nickel, sodium,

sulfate, vanadium, and zinc. The sample level for

106a

aluminum was 10 mg/L—100 times the average

background level. (Doc. No. 227–3 (Sulkin Wr. Test.)

at ¶ 124.)

185. A 2016 NRS 4 sample showed the following

contaminants at levels above the comparison level:

aluminum, antimony, calcium, cobalt, copper, iron,

magnesium, *805 manganese, nickel, selenium,

sulfate, and zinc. (Id. at ¶ 125.)

186. The 2016 NRS 6 sample showed the

following contaminants at levels above the

comparison level: aluminum, antimony, arsenic,

barium,

calcium,

copper,

iron,

manganese,

vanadium, and zinc. (Id. at ¶ 126.) Sulkin also

examined material from the river bottom at NRS 6

with a microscope. He observed cenospheres, which

he testified demonstrated the presence of coal ash in

the river. (Id. at ¶¶ 129ï30.) On cross examination,

however, Sulkin conceded that he had offered no

opinion with regard to when that ash was deposited.

(Doc. No. 235 (Tr. Day 2) at 115.)

187. Sulkin’s expert opinion was that the

elevated contaminant levels in the River adjacent to

the Non–Registered Site were the result of

continuing discharge of contaminated groundwater

into the river or of possible direct discharge into the

Cumberland River from the Site. (Doc. No. 227–3

(Sulkin Wr. Test.) at ¶ 144.)

188. Sulkin also reviewed TVA’s groundwater

monitoring data for the area surrounding the Non–

Registered Site and took part in further groundwater

sampling. The sampling found a number of

107a

contaminants in levels higher

comparison wells. (Id. at ¶¶ 138–39.)

than

TVA’s

189. Sulkin’s expert opinion was that the

elevated contaminant levels in the groundwater

surrounding the Non–Registered Site were the result

of leaks and discharges from the unlined sides and

bottom of the Site. (Id. at ¶ 143.)

190. On cross examination, Sulkin conceded that,

prior to the Court’s ruling that it would not consider

claims based on purely seep-based discharges, he had

referred to his sampling locations as “seeps.” By the

time of trial, he did not use that terminology. Sulkin

explained that he had been using “seep” to refer

generically to discharges. (Doc. No. 235 (Tr. Day 2) at

114–15.) Although the Court notices this

discrepancy, it also notes that, prior to the Court’s

ruling, there had been little reason for Plaintiffs’

experts to draw express distinctions between

discharges that were seeps alone and those that were

not. Accordingly, the Court finds Plaintiffs’ experts

early use of imprecise terminology relevant but not

dispositive. The Court also notes that, as TVA itself

has emphasized, Sulkin is not a geologist or expert in

karst.

191. TVA’s cross examination also focused on

Sulkin’s decision to use “judgmental sampling”—

targeted sampling based on professional judgment—

as opposed to “probabilistic sampling,” which would

have been more conducive to drawing broad

inferences from the resultant data, such as

inferences about the general ambient water quality

of the river in the relevant area. Sulkin explained

108a

that he had used his professional judgment to design

a sampling methodology with his particular

objective—identifying discharges—in mind. (Id. at

118–20.) The Court found Sulkin’s explanation

convincing, but notes that that explanation does

significantly limit the uses to which his sampling can

be put. Because Sulkin’s samples were targeted and

not part of a probabilistic model, they provide only

snapshots of particular moments and particular

locations on the river.

192. Based on its direct observation of his

demeanor, candor, and responsiveness, the Court

found Sulkin to be generally credible, albeit with the

caveat that the Court considered his opinions in the

context of his having been retained by Plaintiffs in

this matter. The Court also noted that TVA

effectively demonstrated that Sulkin’s sampling

strategy was targeted at the narrow purpose of

identifying or confirming leaks, and therefore

provided limited basis for drawing conclusions about

*806 the extent or severity of the leaks, or their

effect on the water quality of the river.

5. Testimony of Albert Hudson, Jr.

193. Albert Hudson, Jr., is a retired pipefitter

living on Odom’s Ben Road, near the Gallatin Plant.

He testified that he relies on well water. Hudson

testified that he was made aware that his well had

become contaminated and would require filtration.

(Doc. No. 235 (Tr. Day 2) at 125–30.) The Court

found Hudson credible, although his testimony had

minimal relevance to the contested issues in this

case.

109a

6. Testimony of Dr. Avner Vengosh

194. Dr. Avner Vengosh is a tenured professor in

the Division of Earth and Ocean Sciences of the

Nicholas School of Environment at Duke University,

where he teaches courses including Introduction to

Hydrogeology and International Water Resources.

He holds a Ph.D. in Environmental Geochemistry

from Australian National University and previously

received M.Sc. and B.Sc. degrees from Hebrew

University of Jerusalem. He serves on the editorial

board of the international journal Environmental

Science and Technology and as an associate editor of

the international journal Applied Geochemistry. (Doc.

No. 160–1 (Vengosh CV) at 1–2, 24.) Vengosh has

amassed a body of honors, grants, and publications

indicative of significant expertise in the fields of

hydrogeology, geochemistry, and environmental

science. (Id. at 2–29.)

195. Vengosh was asked by Plaintiffs to provide

analysis and opinion related to this proceeding.

Vengosh stated that he has never testified as an

expert witness in a legal proceeding before and was

not compensated for his opinions in this case. He

stated that his motivation for involvement in the

matter was to conduct scientific research for

publication. Counsel for Plaintiffs did, however,

contribute funding to Vengosh’s laboratory that was

used to compensate graduate students for their work

under his supervision and to pay laboratory costs for

the research. (Doc. No. 228–1 (Vengosh Wr. Test.) at

¶¶ 1–6.)

196. The parties have stipulated and agreed that

Vengosh is qualified as an expert by knowledge, skill,

110a

experience, training, or education pursuant to

Federal Rule of Evidence 702. (Doc. No. 221.)

197. Vengosh testified that it is his expert

opinion, based on review of data regarding

groundwater and surface water quality, on the

analyses performed by his laboratory under his

supervision, and on his knowledge and experience,

that coal ash from both seeps and groundwater

conduits has contaminated water at the Gallatin

Fossil Plant and is discharging to surface water and

into the groundwater at the site at locations other

than Outfall 001. (Doc. No. 228–1 (Vengosh Wr.

Test.) at ¶ 7.)

198. Vengosh testified that the presence of boron

has been utilized in many studies as a reliable

indicator of coal ash pollution. There are, however,

other potential sources of boron. Accordingly,

Vengosh

explained,

identifying

coal

ash

contamination can be aided by identifying certain

isotopic ratios that are in particular indicative of coal

ash. (Id. at ¶¶ 11–22.)

199. Vengosh’s laboratory has sampled coal ash

effluents from ten coal fired power plants in North

Carolina and Tennessee. All of the coal ash effluents

exhibited elevated boron concentrations and similar

ratios between the two naturally occurring stable

isotopes of boron, B–10 and B–11. (Id. at ¶¶ 14, 24.)

200. Vengosh and co-authors have published

their research on boron and strontium isotopic

fingerprints of coal combustion residuals. (Id. at ¶¶

27–28 & n.1.)

111a

201. Under Vengosh’s direction, a member of his

laboratory collected surface water *807 samples from

the area around the Gallatin Plant in June of 2015.

One groundwater sample was also collected from

Hudson’s private well. (Id. at ¶¶ 32–33.) A member of

Vengosh’s lab also trained Sulkin in taking

groundwater samples, and Sulkin sent groundwater

samples to Vengosh for analysis. (Id. at ¶ 34.) All

samples were analyzed at Vengosh’s laboratory,

under his

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