Tenn. Clean Water Network v. Tenn. Valley Auth.

273 F.Supp.3d 775

TENNESSEE CLEAN WATER NETWORK and Tennessee Scenic Rivers Association, Plaintiffs,

v.TENNESSEE VALLEY AUTHORITY, Defendant.

NO. 3:15–cv–00424

United States District Court, M.D. Tennessee, Nashville Division.

Signed August 4, 2017

Anne E. Passino, Delta Anne Davis, Elizabeth A. Alexander, Southern Environmental Law Center (Nashville Office), Nashville, TN, Gary A. Davis, Davis & Whitlock, P.C., Asheville, NC, Shelby Renee Burks Ward, Tennessee Clean Water Network, Knoxville, TN, Frank S. Holleman, III, Southern Environmental Law Center (CH), Chapel Hill, NC, Jonathan Gendzier, for Plaintiffs.

David D. Ayliffe, James S. Chase, Lane E. McCarty, Maria V. Gillen General Counsel's Office, Edwin W. Small, Tennessee Valley Authority, Knoxville, TN, for Defendant.

FINDINGS OF FACT & CONCLUSIONS OF LAW

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

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 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."

• 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. )

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 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 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 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.)

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 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 of earth penetrated only vertically, and one penetrated both vertically and laterally:

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 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...