A three-judge panel of the US Court of Appeals for the Sixth Circuit [official website] on Monday reversed [opinion, PDF] a district court order that required the Tennessee Valley Authority (TVA) [official website] to dig up and remove a large amount of coal ash at one of its power plants, holding that the Clean Water Act (CWA) [materials] does not regulate pollutants that reach navigable waters through groundwater.

The appeal concerned a US District Court for the Middle District of Tennessee [official website] order requiring the TVA to “fully excavate” the coal ash ponds of its Gallatin Fossil Plant. The Gallatin Plant utilizes a number of unlined coal ash ponds that were found to have leaked into the Cumberland River, a protected waterway under the CWA. While the majority recognized that the “leak[ed] pollutants into the groundwater is a major environmental problem … the CWA is not the proper legal tool of correction.”

The CWA prohibits anyone from “discharging any pollutant” without a permit and defines such as “any addition of any pollutant to navigable waters from any point source.” The court was, thus, charged with answering the question of how direct a connection there must be between the source of pollution and an allegedly contaminated waterway under the CWA.

Writing for the majority, Judge Richard Suhrheinrich held that “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.”

In his dissent, Judge Eric Clay argued that the majority’s opinion allows polluters to escape CWA liability by moving drainage pipes a few feet away from the actual water. He also highlighted the fact that the Fourth and Ninth Circuits have ruled on this issue and came to a decision contrary to the majority’s here. Given the circuit split, it is possible this issue will work its way up to the Supreme Court.