conveyance of pollutants by groundwater and we agree with the apple lease in the previous case that congress has answered that question with rick in the c c r rule in t v is working right now under that correct framework to remedy groundwater prior argument and then focus on some things that are unique to this case and in particular the remedy issue in the point source collateral attack issue we agree with the apple e's in the prior case that the  and cannot be point sources under the clean water act also would disagree with the the appellant's in the prior case i think that's a question of law i think the courts have recognized that also we agree with the apple e's in the prior case that groundwater is non point source pollution and the congress to a regulatory bright line groundwater in passing the clean water act and we also agree that rick was the better fit and i want to come back to a question that you asked judge givens about about whether recruit dresses this very situation the answer is yes and i would cite the court to the definition of disposal in forty two u s c sixty nine zero three which is very broad and it talks any kind of spilling leaking dumping that could make solid waste constituents reach the ground the ground water or to surface waters and so congress came back hundred six and was very specific in addressing groundwater pollution and congress has acted again with specific regard to coerce facilities like the ones that gallup's and to deal with deal with collection and deal with it here unlike the previous case we do have a factual record here and even if the court were were inclined to take a look at those cases and the the differing a textual standards that those courts invented to stretch the clean water act to cover ground water migration they don't fit on the facts of this case the proof wasn't sufficient to show traceability primarily both of those cases the mallee case required a defined beginning and a defined important and also traceable and identifiable points of discharge in traceability in measurable quantities in the force or the case none of that evidence was presented here in fact with the district court found was that none of the science was capable of identifying when where or how long or how pollutants had entered the water the district court found that the plaintiffs had been unable to disentangle the effects of things that happened years and decades ago also found that the sampling evidence was inconclusive which is very different in the situation in the ninth circuit case and in more importantly it specifically found that the plaintiffs had been unable to identify a single specific sinkhole or other leaking feature in the present day and so what the district court did then was it was was left to theorize in its own words in paragraph four thirty three of its findings and conclusions and ultimately to infer the nature of these pathways and that's reversible error also with regard to the ninth circuit's t they added to de minimus element to that test and under the facts of this case we would fall within that the minimal that de minimus standard because in stark contrast to the facts of this case in the ninth circuit case there was definite evidence vault of volumetric evidence about about the amount of what had gone through the wells and the percentages of the amounts of waste water that ultimately entered the oceans and so it's very different in the facts of this case and i think that lack of  traceability ultimately led to the district court's conclusion on the remedy issue and what the district court said was that the evidence was not adequate to fully or accurately assess the extent or the impacts of any unauthorized discharges and it's black letter violation alone is not enough to equal repl harm something more is required that's what the supreme court said in amoco and it's also the law of this court in the supreme court that an injunction must be narrowly tailored to the harm it purports to address and here the extra extreme remedy of excavating over fourteen million cubic yards of coal ash is wholly disproportionate to the scant evidence of harm that the district court found but i do want to be very clear t v is not saying for a the problem when the costs that was the district court's fine yes judge clay but i think that that goes to the fact that the district court failed to take account of what is involved in the c c r rule process the one that congress has indorsed to could the closure plan the t v a put forward for the facilities a gallon and meet t v s obligations of the under the c c oral but would also be sufficient to address the groundwater migration issues in this case and the district court simply ignore evidence that closure in place is not just slapping a cap on the facilities and walking away that was built in to the sea shore rule is a recurrent corrective action framework and the district court didn't consider that in court because if you build those uncertain contradictory and unclear and nevertheless made the decision to give really short shrift to closure in place and really ignore the fact that closure in place comes with it thirty years of closure performance monitoring and what what is built into to the sea shore rule is a corrective action framework and that was discussed and it said it's involving three of the trial testimony pages one forty five to one forty nine where the district court went back and forth with t v s witness pages one forty five to one forty nine and the witness explains that with closure in place comes corrective action and there's a long history of both recurrent and circle of technologies to address groundwater migration that includes things like ground water pump and motoring well i think in that situation it goes back to the balancing that the district court undertook in our position is that was an abuse of discretion because the district court did not give it did not give credence to that in part that entire process that after five years of study was laid out and endorsed by congress to address this very situation and not only not only just the closure of of your facilities but also groundwater migration issues and actually your honor the only competent engineering testimony in the record was that this solution the closure in place aleutian under the c c r rule would be adequate under the c c r room but also to address the groundwater migration issues in this case and we think that's an abuse of discretion not to consider that and on top of that to discount the risks associated with closure by removal of which there are many and there was ample testimony in the record discussing some of those risks for example the increase in the risk of car formation and  migration simply because the length of time required to excavate a massive like that which is a galaxy and so on balance it's that it's that cursory consideration that was given that the lack of merit tailoring and really what the what the testimony showed was and in feasible solution which was significant to the supreme court and winner which we think just underscores the district court's abuse of discretion in the final minute or so that i have a wanted to turn to t v as collateral  permit shield points those arguments are addressed in our brief at length but but very briefly as for the not registered site which is the legacy site it's not a point source and the apple lisa have no response to the argument that the state of tennessee is decision to those for your honor that they've been proceeding in parallel tracks and i don't think i don't know that the remedial outcome could have an impact on the state lawsuit but as of right now the state is proceeding against t v a under its state primarily its state solid waste authorities and so there they are two separate lawsuit one under the federal clean water act and one under state law primarily solid waste law well if they come to different conclusions what have i suppose i would depend on what the ultimate conclusion was i think there's a possibility though that if if the district court were firmed it would it would likely impact the remedial outcome in the state case as for the complex but the district court committed a legal error the permit shield analysis as this court held it has or it starts w expressed terms of the permit stop and the inquiry is what did the regulator reasonably contemplate yet declined to permit the district court ignored the teaching of hazard because it refused to consider evidence from the for the permanent process which specifically showed the state of tennessee good morning my name is frank holman and i'm here of course with apple leads i'd like to start on the dispositive issue for most of this site that was not mentioned by my colleague didn't come up in the prior argument because it wasn't  present in that case and that is here t b a operates the ash pond complex which is most of the ash this side under a permit claim or at permit issued by the state of tennessee and it operates the site as a waste water treatment facility the district court found that violated a clear provision of that permit a separate provision apart from the hydrologic connection issue under the claim water act apart from any river issue and specifically that provision has with respect to weiss water treatment facilities a very commonsense provision and it says any material the t b a must prevent the entrance of any material removed by treatment and to surface water and must prevent it from polluting the surface or the district court for now and of course that that provision was being violated because of waste quote as follows that the rulings of the district court regarding the n p t s permit and the court failed the permit was being violated issued by tennessee for the defendant's ash that the study in its state action was prosecuting only groundwater contamination under this provision the court said that's covered by the state action that the state is proceeding but that the state is not pursuing the pollution of the cumberland river under this provision and therefore we could bring that claim and federal court and therefore he found a violation and therefore the state of tennessee confirms to this coworker that his ruling is consistent with how they apply their own permit for this waste water treatment in a minute because that's not covered by the permit but for the asp on complex what you have said is exactly my point exactly now we hadn't necessarily planned to make this my principal argument had an obligation to enforce the tennessee permit and tennessee has said what he did is consistent with what we do and has told the court that but in addition if you look further apply because there's no point source in there for i think that's more of the argument as to that argument your honor that came up earlier about the point source remember as i said began with tennessee has permitted this this is a waste water treatment facility that is the heart of the point sources that the clean water act wanted to control and to deal with is a waste water treatment facility in the definition a point source it lists containers and this is a container and by the way it's not an exhaustive list it lists whales colleague for the happily said last case then if something is big that doesn't mean it's not point so ok thought it was a big territory big acreage congress didn't say you had to be small be a point s it said you had to be discreet and confined in this instance container and the plain language of the axis is that the clean water act saying that the state of tennessee itself has said that the judges determination the federal judge's determination is perfectly consistent with what is doing in the state action and in the state that the state has actually come to the conclusion as did the district judge that the only appropriate remedy is excavation the state if it follows the federal court might just as well dismiss or action well  necessarily and we can't predict that i would say like this this act federal action is much further along act we've been the final judge i'll try and find it's natural for holes or we hold the way you think as a practical sort of curbside equity evaluation the court has a point there might be once a remedy is in place that might resolve the whole issue i think the state of tennessee would say though it has the right and obligation to enforce its own state laws and make sure it has a forcible state remedy in addition to the in addition to the federal remedy i might point out also that t b a has been doing everything it can to get that case out of state court it removed it to federal court and now to even have a mandate most action pending in this ok this court attempting to mandamus the district court for remaining it back to the state so the state action is is is not as for loans this one but i think you have a point that one of the remedy ordered by the district judge is a room of the that both the state and the district act does not apply when pollutants move from a point source into a waterway in other words if from a point source and there in the waterway and the second circuit reject it and said no the clean water act does apply and so states like michigan and tennessee and texas and i don't have and other states have regulated keiko's own that theory would have to do is pull their pipe back from the river bury him maybe not be here pull it back from the river and says it doesn't the point source according to act applause throughout the united states there is a huge weight of judicial authority this supports the position of the district court the second circuit the fourth circuit the seventh circuit the ninth circuit and the tenser and there's no circuit that i'm aware of when faced with a situation where there was actually a direct how do logic connection between the pollution of the river and a wife's water treatment plant you said clean water act does not apply let me address this issue of the c c r rule so i can deal with that quickly if i may but what it does not address anywhere in that rule for that matter anywhere is the pollution of an average water like the cumberland river and i would like to point out is a discharge which is an addition of any pollutant to map the waters from a point source that is a waste water treatment facility finally has to the remedy the judge did everything he could to balance is case but he was permits and the judge had no alternative but to bring them into compliance and he looked for ways and he looked to see if it could be permit in he solid tenancy this year refused to permit exactly what v i asked them to permit to get around this decision instead the tennessee agency said no your permit does not authorize your discharge of this coal ash material from the bottom and sides of this look and through these cars tunnels and conduits into the cumberland river so with the judge did after trying every solution he could think of adopted the only one that cure the violations bring p v a annual revenue into compliance and he ended up adopting the remedy that the state of tennessee after considering all economic issues reached is our lot it appears that the president and the n word about the state case the state ultimately will have to prove that it's entitle to the relief that it's seeking under state law and i can understand why the state would like this court to relieve it of its burden of proof but the pendency of the state action does not answer the questions in this case number one whether there's been a clean water act violation in number two whether the the remedy imposed by the district court was an abuse of discretion or is appropriate under the federal clean water act and as to the specific permit provisions that judge three hundred had asked about earlier generally speaking permits or interpret according to contract principles according to the principles of questions of law and at the the time of the permits formation if you will the state of tennessee specifically told t v a in response to comment thirteen that no in p d s permit conditions would be established for groundwater migration that's what they told this or they told the public and that's what they informed t v s and for that reason the permit has to be read with that in mind and so it doesn't make any sense to read those specific provisions as bahrain groundwater migration when the regulator specifically told us it wasn't imposing those kinds of conditions in addition to the fact of the plain language itself as we mentioned in our briefs don't support the reading of the district court on those those provisions my colleague was correct those provisions do not govern the in areso would not it would not affect the decision as to the non registered side it's a separate site but on those specific permit provisions in the state's brief before this court it did not endorse the district court's interpretation of those provisions and it just issued the state of just issued t v a new permit in its attached to th july six twenty eight j letter in that new permit the state the state interpretation of the remove substances and sanitary sewer provisions supports t v s interpretation also a word about the c c r rule and my colleague did mention that it doesn't address effects on on surface waters on  section two fifty seven point one zero two the closure performance standards for the closure of facilities specifically requires that closure be conducted in a manner that to the maximum extent feasible addresses leachate contamination from facilities to ground water and to surface water so it does address it and i also wanted to respond to the point that the judge didn't have any alternatives of the trial court didn't have alternatives it had to order the remedy that it water and that's not correct the alternatives are set forth on the face of the c c r rule itself and that is rick reactive action there are numerous technologies long tested have been used for decades to address this very kind of groundwater migration to prevent groundwater migration from never mentioned a few earlier but they're well established were it's possible to pump and treat groundwater to install walls to block groundwater flow of to the river and also to create what's called reverse groundwater gradient to actually move groundwater back into the site so there's a suite of technologies that the district court simply didn't give consideration to and so for all these reasons your honor steve you would request that the judgment below be reversed or in the alternative that the injunction be vacated in the case for man did for the court to under weinberger to consider whether an injunction should issue especially in light of the fact of t v s new permit and considering t v s obligations under the c c r rule or if necessary a proper application of the traditional framework for the extraordinary remedy