Ky. Waterways Alliance v. Ky. Utilities Co.

905 F.3d 925

KENTUCKY WATERWAYS ALLIANCE ; Sierra Club, Plaintiffs-Appellants,

v.KENTUCKY UTILITIES COMPANY, Defendant-Appellee.

No. 18-5115

United States Court of Appeals, Sixth Circuit.

Argued: August 2, 2018

Decided and Filed: September 24, 2018

ARGUED: Thomas Cmar, EARTHJUSTICE, Oak Park, Illinois, for Appellants. Paul D. Clement, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellee. ON BRIEF: Thomas Cmar, EARTHJUSTICE, Oak Park, Illinois, Benjamin Locke, EARTHJUSTICE, Philadelphia, Pennsylvania, Joe F. Childers, JOE F. CHILDERS & ASSOCIATES, Lexington, Kentucky, Matthew E. Miller, SIERRA CLUB, Washington, D.C., for Appellants. Paul D. Clement, Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., John C. Bender, DINSMORE & SHOHL LLP, Lexington, Kentucky, F. William Brownell, Eric J. Murdock, HUNTON ANDREWS KURTH LLP, Washington, D.C., Robert M. Rolfe, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, Nash E. Long, III, Brent A. Rosser, HUNTON ANDREWS KURTH LLP, Charlotte, North Carolina, J. Gregory Cornett, Robert J. Ehrler, LG&E AND KU ENERGY LLC, Louisville, Kentucky, Sheryl G. Snyder, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellee. Erin M. Palmer, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, Thomas A. Lorenzen, CROWELL & MORING LLP, Washington, D.C., for Amici Curiae.

Before: SUHRHEINRICH, CLAY, and GIBBONS, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court in which GIBBONS, J., joined, and CLAY, J., joined in part. CLAY, J. (pp. 940–47), delivered a separate opinion concurring in part and dissenting in part.

SUHRHEINRICH, Circuit Judge.

Pollutants can find their way into bodies of water in a variety of ways. Sometimes they travel by air and settle into lakes, rivers, oceans, and the like. Sometimes pipes dump pollutants directly into those waters. In this case, we consider pollution that reaches surface waters by way of subsurface water, or groundwater.

Appellee-Defendant Kentucky Utilities Company ("KU") burns coal to produce energy. It then stores the leftover coal ash in two man-made ponds. The plaintiffs here, two environmental conservation groups, contend that the chemicals in the coal ash are contaminating the surrounding groundwater, which in turn contaminates a nearby lake. They say that this conduct violates two separate federal statutes: the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA").

With their first argument, we disagree. The CWA does not extend liability to pollution that reaches surface waters via groundwater. But RCRA does govern this conduct, and because the plaintiffs have met the statutory rigors needed to bring such a claim, the district court must hear it. We affirm in part and reverse in part.

I. BACKGROUND

A. Statutory Framework

We are tasked with interpreting two federal statutes in this case: the CWA and RCRA. As such, some background information on each statute is a helpful starting point.

CWA. Congress passed the CWA in 1972 with the stated purpose of "restor[ing] and maintain[ing] the ... Nation's waters." 33 U.S.C. § 1251(a). To promote that goal, the CWA forbids all unpermitted polluting of navigable waters. Id. §§ 1311(a), 1342(a). In that sense, the statutory scheme is relatively straightforward: get a permit or do not pollute. Those permits are issued pursuant to the statute's National Pollutant Discharge Elimination System ("NPDES"). Id. § 1342. An NPDES permit is required in order to "discharge ... any pollutant." Id. § 1311(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). Thus, in order to add a pollutant to the waters of the United States via a conveyance, a permit must first be issued.

Congress enacted this program as a major overhaul to the CWA's predecessors, the 1948 Federal Water Pollution Control Act and the Water Quality Act of 1965. Under those two statutes, liability arose when pollutants in a given body of water exceeded certain levels. Once excess pollution was detected, enforcement authorities had to trace the pollution back to its source. Trouble was, tracing those excess levels back to a particular defendant's actions proved all but impossible—only one prosecution was levied under that regime. See S. Rep. No. 92-414 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3672 ("The record shows an almost total lack of enforcement. Under this procedure, only one case has reached the courts in more than two decades."). To remedy that problem, Congress changed its focus from the receiving water to the discharging source. Id. at 3675 ("Under [the CWA] the basis of pollution prevention and elimination will be the application of effluent limitations. Water quality will be a measure of program effectiveness and performance, not a means of elimination and enforcement. ... With effluent limits, the [EPA] ... need not search for a precise link between pollution and water quality.").

Alongside the CWA's broad proscriptions, Congress also sought to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use ... of land and water resources." 33 U.S.C. § 1251(b). Congress achieved that goal in a few ways. For example, the CWA allows states to administer the federal NPDES permitting program, provided their regulations are at least as stringent as the federal limitations.¹ See id. § 1342(b)-(d). But perhaps most notably, the CWA draws a line between point-source pollution, as described above, 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 regulatory ambit of the states. 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) (noting that, as compared to point-source pollution, "pollution arising from nonpoint sources is to be dealt with differently, specifically through the device of areawide waste treatment management by the states" (quoting U.S. ex rel. Tenn. Valley Auth. v. Tenn. Water Quality Control Bd. , 717 F.2d 992, 999 (6th Cir. 1983) ) ). Similarly, federal regulation under the CWA only extends to pollutants discharged into navigable waters, 33 U.S.C. § 1362(12), leaving the states to regulate all pollution of non-navigable waters.

As a means of enforcement, the CWA gives the EPA the power to issue orders and bring civil and criminal actions against those in violation of its provisions. Id. § 1319(a)-(c). Moreover, the CWA allows for private citizens to file civil actions against violators, provided they give the EPA, the relevant state, and the alleged wrongdoer sixty-days' notice prior to filing the lawsuit. Id. § 1365(a)-(b).

RCRA. Enacted four years after the CWA, RCRA is designed to "promote the protection of health and the environment and to conserve valuable material and energy resources." 42 U.S.C. § 6902(a). Like the CWA, RCRA embodies principles of cooperative federalism. The states are central to RCRA's operation, and the federal government "provid[es] technical and financial assistance to State and local governments ... for the development of solid waste management plans." Id. § 6902(a)(1) ; § 6926(b). As the text makes clear, RCRA is concerned with solid waste management, unlike the CWA, which concerns itself with water pollution. As such, the regulatory reach of RCRA begins and ends with solid waste, and the statute expressly excludes "industrial discharges which are point sources subject to [NPDES] permits under [the CWA]." Id. § 6903(27). So while coal ash is stored and treated in the coal ash ponds, RCRA governs; once the ash pond wastewater is discharged by way of a point source to navigable waters, the CWA kicks in. And when a discharge requires an NPDES permit, it is expressly excluded from RCRA's coverage.

In order to meet its objectives, RCRA encourages states to develop plans to manage solid waste. Id. § 6907. Specifically, RCRA requires the EPA to promulgate guidelines for solid waste disposal facilities that would help "protect[ ] ... the quality of ground waters and surface waters from leachates." Id. § 6907(a)(2).

Similar to the CWA, RCRA allows the EPA and relevant state agencies to enforce the statute via civil or criminal actions. Id. § 6928(a), (d), (g), § 6926(b). The statute also permits citizen suits. Id. § 6972(a). A private citizen may sue "any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." Id. § 6972(a)(1)(B).² In order to bring such a suit, the suing party must provide ninety-days' notice to the EPA, the relevant state, and the alleged wrongdoer. Id. § 6972(b)(2)(A).

As part of its rulemaking authority under RCRA, the EPA promulgated a formal rule in 2015 addressing disposal of coal combustion residuals from electric utilities that has been dubbed the "CCR Rule." See 80 Fed. Reg. 21,302 (Apr. 17, 2015). The CCR Rule specifically addresses the "disposal of coal [ash] as solid waste under [RCRA]." Id. at 21,302. To that end, "[t]he rule requires any existing unlined CCR surface impoundment that is contaminating groundwater above a regulated constituent's groundwater protection standard to stop receiving CCR and either retrofit or close." Id. The rule then establishes minimum criteria for coal ash surface impoundments and requires groundwater monitoring, as well as corrective actions where groundwater contamination exceeds...