United States District Court, M.D. Tennessee, Nashville Division
STATE OF TENNESSEE ex rel. HERBERT H. SLATERY III, in his official capacity as the Attorney General and Reporter of Tennessee and ROBERT J. MARTINEAU, JR., Commissioner of the Tennessee Department of Environment and Conservation, Plaintiffs,
TENNESSEE VALLEY AUTHORITY, Defendant. and TENNESSEE CLEAN WATER NETWORK and TENNESSEE SCENIC RIVERS ASSOCIATION, Plaintiff-Intervenors,
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motions of Plaintiffs (the
“State”) and Plaintiff-Intervenors
(“Citizens Groups”) to remand the case to the
Chancery Court for Davidson County, Tennessee. (Doc. Nos. 12,
14.) Defendant Tennessee Valley Authority (“TVA”)
has responded in opposition (Doc. No. 19), and the State and
the Citizens Groups have replied (Doc. Nos. 21, 22). For the
following reasons, the Court will grant the motions.
owns and operates an active coal-fired power plant (the
“Gallatin Plant”) located on the north bank of
the Cumberland River, within approximately five miles of
Gallatin, Tennessee. Until 1970, coal combustion residual
material (“CCR”) generated through the operation
of the Gallatin Plant was treated in a series of unlined ash
ponds located on the western edge of the site. In 1970, these
ponds were closed after reaching capacity; that area is
typically referred to as the “Non-Registered
Site.” Under Tennessee law, the Non-Registered Site is
considered a solid waste disposal site, and it is managed by
the Tennessee Department of Environment and
Conservation's (“TDEC”) Division of Solid
Waste Management under the Tennessee Solid Waste Disposal Act
(“SWDA”). See Tenn. Code Ann.
§§ 68-211-101 to 68-211-124.
1970, TVA began treating its CCR using a series of unlined
ponds located north-northeast of the Non-Registered Site.
This area includes Bottom Ash Pond A (“Pond A”),
Fly Ash Pond E (“Pond E”), and Stilling Ponds B,
C, and D (together, the “Ash Pond Complex”). The
Ash Pond Complex covers several hundred acres, and it
ultimately discharges to the Cumberland River under a
TDEC-issued National Pollutant Discharge Elimination System
26, 2012, TDEC's Division of Water Resources issued the
most recent version of TVA's individual NPDES permit (the
“NPDES Permit”). The NPDES Permit authorizes TVA
to discharge treated effluent from the Ash Pond Complex in a
certain manner and imposes certain daily maximum and monthly
average limits on effluent characteristics. The NPDES Permit
requires TVA to conduct inspections of the Ash Pond Complex
for structural defects and to identify certain conditions
that may be indicative of structural instability.
November 10, 2014, the Citizens Groups issued a 60-day Notice
of Violation Letter to TVA, TDEC, and the Environmental
Protection Agency under the citizen suit provision of the
Clean Water Act, 33 U.S.C § 1365, alleging multiple
violations at the Gallatin Plant. See 33 U.S.C
§§ 1251-1387. In response, on January 7, 2015, the
State filed a complaint against TVA in the Chancery Court for
Davidson County, Tennessee (“Chancery Court”),
alleging violations of the SWDA, the Tennessee Water Quality
Control Act of 1977, as amended, Tenn. Code Ann. §§
69-3-101 to 69-3-137 (“TWQCA”), and the NPDES
Permit. With TVA's agreement, the Citizens Groups
intervened pursuant to Tenn. R. Civ. P. 24.01(3). On February
27, 2015, the Citizens Groups filed their complaint in
intervention, also alleging violations of the SWDA, TWQCA,
and the NPDES Permit at the Gallatin Plant. TVA answered the
State's and Citizens Group's complaints on March 3,
2015, and April 1, 2015, respectively. TVA did not seek
to remove the state court case.
parties engaged in discovery and motion practice for over two
years pursuant to multiple scheduling orders. In April 2017,
the Chancery Court set trial for December 2017 and extended
certain discovery deadlines. In May 2017, the Chancery Court
denied TVA's motions to (1) bifurcate the liability and
remedy portions of trial and (2) condition the Citizen
Groups' participation in depositions and at trial. In
June 2017, the Chancery Court denied TVA's motions for
(1) summary judgment on the State's complaint and (2)
judgment on the pleadings on the Citizens Groups'
complaint in intervention. On June 30, 2017, TVA filed a motion
for leave to file amended answers.
6, 2017, the State forwarded a proposed amended complaint to
the parties. (Doc. No. 17-1.) TVA did not consent to
the proposed amended complaint and thus, on July 13, 2017,
the State filed a motion to amend. On July 17, 2017, TVA
filed a motion seeking interlocutory appeal of the Chancery
Court's order denying summary judgment. The Chancery
Court held TVA's motion to amend its answers in abeyance
until after disposition of the State's motion to amend.
But then TVA did not oppose the State's amendments, and
on August 2, 2017, the Chancery Court entered an order
granting the State's motion, entering the amended
complaint, and ordering TVA to serve its answer within 30
amended complaint provides more information on a variety of
subjects, including management of the Non-Registered Site,
handling of CCR, and NPDES permit authorization. (Doc. No.
18-1 at Ex. 5, ¶¶ 22-48.) It also adds additional
information concerning the ongoing investigation at the
Gallatin Plant, including alleged TVA violations.
(Id. at ¶¶ 45, 50-52.) Perhaps most
notably, the amended complaint subjects Pond A and Pond E to
treatment as solid waste disposal sites under the SWDA (in
the same manner as the Non-Registered Site), as opposed to
wastewater treatment sites. Finally, the amended complaint
seeks the same types of relief originally pled in the
complaint, including injunctive relief and the potential
assessment of civil penalties under the TWQCA; however the
request for injunctive relief has been broadened to
incorporate Pond A and Pond E under the SWDA on an
accelerated basis, a result that TVA claims would have
“dire consequences.” (Doc. No. 19 at 9.) While
TVA argues that “the new SWDA cause of action
potentially exposes TVA to millions of dollars in additional
liability, ” (id.), the State has
affirmatively represented to the Court that TVA's
“potential exposure to civil penalties under the
amended complaint is no more than under the original
complaint.” (Doc. No. 22 at 9.)
August 4, 2017, the Chancery Court denied TVA's motion
for permission to appeal the denial of summary judgment. On
August 9, 2017, TVA filed a motion to exclude three of the
State's disclosed experts. On August 10, 2017, the State
moved to compel TVA to comply with discovery obligations
ahead of the trial. That same day, one week before the
parties were set to begin deposing dozens of fact and expert
witnesses, TVA filed a Notice of Removal, removing the action
to this Court over two and one-half years after it was
initially filed in the Chancery Court.
United States or any agency thereof may remove any civil
action or criminal prosecution relating to official acts that
is commenced against it in a state court “to the
district court of the United States for the district and
division embracing the place wherein it is pending.” 28
U.S.C. § 1442(a)(1). The notice of removal of a civil
action or proceeding must be filed “within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based.” 28 U.S.C. § 1446(b)(1). Stated
differently, “the 30-day period in § 1446(b)(1)
starts to run only if the initial pleading contains
“solid and unambiguous information that the case is
removable.” Holston v. Carolina Freight Carriers
Corp., No. 90-1358, 1991 WL 112809, at *3 (6th Cir. June
26, 1991) (per curiam). If the initial pleading lacks solid
and unambiguous information that the case is removable, the
defendant must file the notice of removal “within 30
days after receipt . . . of a copy of an amended pleading,
motion, order or other paper” that contains solid and
unambiguous information that the case is removable.
See 28 U.S.C. § 1446(b)(3); Berera v. Mesa
Med. Grp., PLLC, 779 F.3d 352, 364 (6th Cir. 2015);
Charles Alan Wright, Arthur R. Miller, et al., 14B Fed. Prac.
& Proc. Juris. § 3731 (4th ed. 2018)
(“[Section 1446(b)(3)] requires . . . that a previously
unremovable case has become removable.”). A party may seek
remand of a removed action “within 30 days after the
filing of the notice of removal.” 28 U.S.C. 1447(c);
Wisconsin Dep't of Corr. v. Schacht, 524 U.S.
381, 392 (1998).
right of removal of a suit from state court to federal court
is a statutory right.” Regis Assocs. v. Rank Hotel
(Mgmt.), Ltd., 894 F.2d 193, 195 (6th Cir. 1990) (citing
28 U.S.C. § 1441). The party seeking removal bears the
burden of establishing its right to removal. Byrd v.
Tenn. Wine & Spirits Retailers, Ass'n, No.
3:16-cv-02738, 2017 WL 67993, at * 3 (M.D. Tenn. Jan. 6,
2017). The removal statute is to be strictly construed, with
any ambiguity resolved against removal. Id; see
also Syngenta Crop Protection, Inc. v. Henson, 537 U.S.
28, 32 (2002); Smith v. Nationwide Prop. & Cas. Ins.
Co., 505 F.3d 401, 405 (6th Cir. 2007); Jacada, Ltd.
v. Int'l Mktg. Strategies, Inc., 401 F.3d 701, 704
(6th Cir. 2005); Brown v. New Jersey Mfrs. Ins.
Grp., 322 F.Supp.2d 947, 950 (M.D. Tenn. 2004). On a
motion to remand, the defendants bears the burden of
establishing that removal was proper. Her Majesty the
Queen v. Detroit, 874 F.2d 332, 339 (6th Cir. 1989);
Atkinson v. Morgan Asset Mgmt., Inc., 664 F.Supp.2d
898, 902 (W.D. Tenn. 2009). Upon such a motion, “all
doubts” about whether removal is proper must be
resolved in favor of remand. Coyne v. Am. Tobacco
Co., 183 F.3d 488, 493 (6th Cir. 1999).
TVA's Notice of Removal Was Untimely Under ...