Ky. Waterways Alliance v. Kentucky Util. Co.

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 ibr.US_Case_Law.Schema.Case_Body:v1">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 accepted levels. See id. at 21 ,396 -408; see also 40 C.F.R. §§ 257.91 , 257.95, 257.98.

B. Factual Overview

KU operates the E.W. Brown Generating Station ("E.W. Brown"). E.W. Brown is a coal-burning power plant in Kentucky. Like all similar power plants, E.W. Brown burns coal in order to heat large amounts of water. The water turns into high-pressure steam and is funneled through pipes to a series of turbines connected to generators. The steam's pressure causes the turbines to spin, which, in turn, causes the generators to produce electricity. The steam passes through the turbines where more water is piped in to cool it and convert it back into condensed water. The condensed water then returns back to the start to repeat this cycle. Just as it sounds, the process uses a lot of water-both for power generation and to cool and condense steam. Water is also used to treat the coal waste generated from this process. As a result, most coal-burning power plants sit near bodies of water from which they draw for their power generation.

E.W. Brown is one such plant. It is located West of Kentucky's Dix River and adjacent to Herrington Lake, which was created by damming a portion of the Dix River. Herrington Lake is a large man-made lake, with a 4.6 square-mile footprint and a 35-mile span. It is a popular recreation destination for Kentucky residents. Since 1957, E.W. Brown has taken water from Herrington Lake in order to generate power for nearby residents.

The problem with burning coal to produce power is that the process also produces ash, or "coal combustion residuals" (commonly referred to as "CCRs"). Two forms of ash are generated by burning coal: (1) light-weight ash known as "fly ash" that is carried through the smokestacks and discharged into the air; 3 and (2) heavier particles known as "bottom ash" that remain at the base of the smokestacks. The bottom ash needs to be removed and disposed of in order to create room for new coal to be burned in the furnaces.

To dispose of coal ash, KU uses a "sluice" system-it combines the ash with lots of water and pipes that wastewater into man-made ponds nearby. 4 Once discharged into those ponds, the ash sinks into the banks and the bottoms of the ponds, where it is intended to remain permanently. KU has constructed two ash ponds at E.W. Brown, unceremoniously titled the "Main Ash Pond" and the "Auxiliary Ash Pond." The Main Ash Pond has twice been expanded since it was opened and currently stretches 114 acres. It is estimated to house six million cubic yards of coal ash. The Auxiliary Ash Pond was first constructed as a temporary reservoir while KU expanded the Main Ash Pond. It covers 29.9 acres.

The plaintiffs, two environmental groups: Sierra Club and Kentucky Waterways Alliance (collectively "Plaintiffs"), contend that groundwater flows cause the ash ponds to release pollutants into Herrington Lake.

Some background on groundwater and its flow is necessary. Groundwater is subsurface water that tends to migrate from high elevation to low elevation. Different subsurface materials allow passage of groundwater at different rates and in different volumes. For example, groundwater can hardly flow through clay, whereas it may pass quickly through fractured rock. Those types of terrain that facilitate groundwater movement-like fractured rock-are known as "aquifers," whereas relatively impermeable terrain-like clay-is known as an "aquitard."

Plaintiffs' concern is that the ash ponds are contaminating the nearby groundwater and that this groundwater flows into Herrington Lake, causing excess pollution. The problem is exacerbated, they say, by the fact that the ash ponds sit on top of an aquifer. Specifically, the two ash ponds were built on top of karst terrain. Karst is created when a highly-soluble subsurface rock, often limestone, erodes. This creates a series of caverns, sinkholes, tunnels, and paths. Plaintiffs argue that because the ash ponds sit atop karst terrain, the groundwater flows through it more quickly and more abundantly, thus increasing the rate of pollution into Herrington Lake.

Coal ash can pollute water with a number of different chemicals including, but not limited to, arsenic, lead, calcium, and boron. What caught Plaintiffs' attention in this case was another of those chemicals: selenium. Plaintiffs hired an ecotoxicology expert to test the water near E.W. Brown and he discovered elevated selenium levels in Herrington Lake and in the groundwater surrounding the coal ash ponds. He also found that the fish in Herrington Lake were already being harmed by the selenium levels. While selenium is healthy (indeed, necessary) in certain small amounts, too much of it can become extremely toxic for fish. Excess selenium accumulates in fish tissue, where it is passed to offspring through a parent's eggs. This can kill developing fish before they hatch or lead to deformities such as misshapen bones once they hatch Those deformities are often lethal. In short, selenium poisoning poses a critical problem for aquatic wildlife.

C. Regulatory Overview

In 2011, KU decided to convert its Main Ash Pond into a dry landfill. It submitted its application to do so to the Kentucky Department of Environmental Protection ("KDEP") in August 2011. KDEP required KU to monitor the groundwater surrounding the Main Ash Pond before it would issue a landfill permit. In 2013, KU submitted a report based on its testing that showed increased levels of certain chemicals in nearby areas. After reviewing the report, KDEP issued KU a permit to build the landfill, but it withheld the permit KU needed to operate it. To earn the operation permit, KDEP required KU to submit another plan outlining the actions it planned to take to treat contaminated groundwater and prevent further contamination. KU submitted that plan in February 2015 and, over Plaintiffs' objections, KDEP issued KU an operating permit for the landfill.

Displeased with that outcome, Plaintiffs notified the relevant parties that they intended to sue KU under both the CWA and RCRA. KDEP reviewed Plaintiffs' notice and their corresponding groundwater studies and determined that KU was in violation of its water pollution limits. It issued a Notice of Violation to that effect in January 2017. Kentucky's Energy and Environment Cabinet (the "Cabinet") and KU then entered into an "Agreed Order" in an effort to address the pollution problem. As required by the Agreed Order, KU submitted a "Corrective Action Plan" ("CAP") in April 2017. It outlined extensive monitoring that KU was required to conduct in order to track the progress of the pollution coming from the coal ash ponds. If those studies indicated that the pollution was not improving, the CAP contemplated additional remedial measures.

Unsatisfied, Plaintiffs filed their federal lawsuit in the Eastern District of Kentucky in July 2017. The district court dismissed both of Plaintiffs' claims. First, it rejected Plaintiffs' legal contention that the CWA covers pollution of this sort. Second, it held that Plaintiffs lacked standing on their RCRA claim because it could not redress a claim that was already being remedied by Kentucky's regulatory agencies. Since it concluded that Plaintiffs lacked standing, the district court held that it did not have jurisdiction to hear their claim.

II. ANALYSIS

We review the district court's order granting KU's motion to dismiss de novo. U.S. Citizens Ass'n v. Sebelius , 705 F.3d 588 , 597 (6th Cir. 2013). Plaintiffs' complaint may only proceed if it alleges "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662 , 678, 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544 , 570, 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007) ).

A. CWA Claim

A CWA claim comes to life when five elements are present: "(1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source ." Consumers Power Co. , 862 F.2d at 583 (quoting Nat'l Wildlife Fed'n v. Gorsuch , 693 F.2d 156 , 165 (D.C. Cir. 1982) ). In order for groundwater pollution that ultimately affects surface waters to fall within the scope of the CWA, it must fit within those five elements. Plaintiffs offer two theories as to why their claim does.

First, they argue that groundwater is a point source that deposits pollutants into Herrington Lake. This theory treats groundwater as if it were a pipe through which pollutants travel. Plaintiffs also argue that the karst terrain that carries the groundwater is a point source in that it amounts to a network of conduits through which pollutants flow. We refer to this theory as the "point source" theory.

Next, Plaintiffs adopt the so-called "hydrological connection" theory. 5 Under this approach, groundwater is not considered a point source, but rather a medium through which pollutants pass before being discharged into navigable waters. The point sources under this theory, as Plaintiffs argue, are the coal ash ponds themselves.

We reject both theories; the CWA does not extend its reach to this form of pollution. The text and statutory context of the CWA make that clear. In so holding, we disagree with the decisions from our sister circuits in Upstate Forever v. Kinder Morgan Energy Partners, L.P. , 887 F.3d 637 (4th Cir. 2018), and Hawai'i Wildlife Fund v. Cty. of Maui , 886 F.3d 737 (9th Cir. 2018). 6

Text. To resolve this issue, the CWA's text is both a helpful starting place and a mandatory one. See Mich. Flyer LLC v. Wayne Cty. Airport Auth. , 860 F.3d 425 , 428 (6th Cir. 2017). As noted, the CWA regulates parties that pollute navigable waters where that pollution comes from a "point source." 33 U.S.C. §§ 1311 (a), 1362(12). A point source, in turn, is a "discernible, confined and discrete conveyance." Id. § 1362(14). Thus, for pollution to be governed by the CWA, it must have traveled through a conveyance, and that conveyance must have been discernable, confined, and discrete.

Plaintiffs' point source theory fails because neither groundwater nor the karst through which it travels is a point source under these definitions. While groundwater may indeed be a "conveyance" in that it carries pollutants, see Convey , Webster's Third New International Dictionary, Unabridged. 2018. Web. 21 Aug. 2018 ("[T]o bear from one place to another"; "[T]o transfer or deliver"), it is not "discernible," "confined" or "discrete." To be discernible, groundwater must be capable of being "recognize[d] or identif[ied] as separate or distinct." Discern , Webster's Third New International Dictionary, Unabridged. 2018. Web. 22 Aug. 2018. Similarly, it must be discrete, meaning it must "constitut[e] a separate entity" or "consist[ ] of distinct ... elements," Discrete , Webster's Third New International Dictionary, Unabridged. 2018. Web. 22 Aug. 2018, and it must be confined, meaning "limited to a particular location," Confined , Webster's Third New International Dictionary, Unabridged. 2018. Web. 22 Aug. 2018. But groundwater is none of those things. By its very nature, groundwater is a "diffuse medium" that seeps in all directions, guided only by the general pull of gravity. See 26 Crown St. Assocs., LLC v. Greater New Haven Reg'l Water Pollution Control Auth. , No. 3:15-CV-1439, 2017 WL 2960506 , at *8 (D. Conn. July 11, 2017). Thus, it is neither confined nor discrete. And while dye traces can roughly and occasionally track the flow of groundwater, they do not render groundwater "discernible." Indeed, Plaintiffs' own expert explained that when he injected dyes into three different locations from the Main Ash Pond in 2012, only one was recovered. One cannot look at groundwater and discern its precise contours as can be done with traditional point sources like pipes, ditches, or tunnels. 33 U.S.C. § 1362 (14). For that reason, the CWA's text forecloses an argument that groundwater is a point source.

Plaintiffs' spin-off argument-that the karst underlying the coal ash ponds is a point source-fares no better. They contend that the soluble rock has given way to subsurface conduits and pipes, making the groundwater system discernible, confined, and discrete. But this argument still treats the groundwater system as the point source. All that differs between groundwater in the more traditional sense and groundwater in this case is the terrain through which it passes. As noted, some terrain allows for speedier groundwater flow (like karst); some is less conducive (like clay). The only difference is expediency. That groundwater may move more quickly through karst does not change that it is neither discernable, discrete, nor confined. See 33 U.S.C. § 1362 (14). 7 Accordingly, the CWA's text does not support the argument that either groundwater or the karst that carries it is a point source.

The CWA's text also forecloses the hydrological connection theory. The backbone of Plaintiffs' 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," id. § 1362(12)(A), they 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 CWA-regulated party must abide-the heart of the CWA's regulatory power-are known as "effluent limitations." Id. § 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 id. § 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 Third New International Dictionary, Unabridged. 2018. Web.21 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 .") (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)(A) (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. Under the facts of this case, KU is discharging pollutants into the groundwater and the groundwater is adding pollutants to Herrington Lake. But groundwater is not a point source. Thus, when the pollutants are discharged to the lake, 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. 8

Often, proponents of the hydrological connection theory turn to Rapanos v. United States , 547 U.S. 715 , 126 S.Ct. 2208 , 165 L.Ed.2d 159 (2006) in support of their position. See, e.g. , Upstate Forever , 887 F.3d at 650 ; Hawai'i Wildlife Fund , 886 F.3d at 748 . In Rapanos , the Supreme Court noted 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.' " Rapanos , 547 U.S. at 743 , 126 S.Ct. 2208 (plurality opinion) (quoting 33 U.S.C. § 1362 (12)(A) ). Plaintiffs rely on this quote in support of their position. But the quote has been taken out of context in an effort to expand the scope of the CWA well beyond what the Rapanos Court envisioned. 9

The courts and litigants to have relied on Rapanos 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 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 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.

Context. This reading is strengthened in light of the CWA's other provisions and corresponding federal environmental laws. Invariably, courts that have adopted the hydrological connection theory rely heavily on the CWA's stated purpose of "restor[ing] and maintain[ing] ... the Nation's waters." 33 U.S.C. § 1251 (a) ; see, e.g. , Upstate Forever , 887 F.3d at 652 (reiterating this purpose and holding that rejecting the hydrological connection theory "would greatly undermine the purpose of the [CWA]"); Hernandez v. Esso Standard Oil Co. , 599 F. Supp. 2d 175 , 180 (D.P.R. 2009) (adopting the hydrological connection theory on the "simple and persuasive" rationale that "since the goal of the CWA is to protect the quality of surface waters, any pollutant which enters such waters, whether directly or through groundwater, is subject to regulation by NPDES permit" (quoting Wash. Wilderness Coal. v. Hecla Mining Co. , 870 F.Supp. 983 , 990 (E.D. Wash. 1994) ) ). But such outsized reliance on § 1251(a) is misguided.

First, protecting navigable waters is only one of the CWA's expressly stated purposes. Just after declaring its intent to protect the "Nation's waters," the CWA makes clear that it is also designed 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). For that reason, the CWA envisions significant state involvement in environmental regulation. That is why states are authorized to administer the NPDES permitting regime themselves. Id. § 1342(b). It is also why the CWA leaves all forms of nonpoint-source pollution to state regulation.