Full opinion text
MEMORANDUM OPINION AND ORDER THOMAS A. VARLAN, District Judge. These civil actions are before the Court on Defendant TVA’s Motion to Dismiss or for Summary Judgment (the “Motion to Dismiss or for Summary Judgment”) [Doc. 41] and the Motions to Dismiss All Claims for Punitive Damages Against TVA and to Strike All Jury Demands Against TVA (the “Motion to Dismiss Punitive Damages and Strike Jury Demand”) [Doc. 58], filed by defendant Tennessee Valley Authority (“TVA”). This litigation consists of the seven captioned cases listed above — four separately filed class action complaints and three non-class action complaints — all filed against TVA and all relating to the December 22, 2008 dike failure and coal ash spill at the Swan Pond facilities at TVA’s Kingston Fossil plant in Roane County, Tennessee (the “Swan Pond facilities”). In the Motion to Dismiss or for Summary Judgment [Doc. 41], TVA moves the Court, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all tort claims filed against it by Plaintiffs in the seven captioned cases for lack of justificiability on grounds of the federal discretionary function doctrine and failure to state a claim for which relief can be granted. Alternatively, and pursuant to Federal Rule of Civil Procedure 56, TVA moves the Court for summary judgment on all Plaintiffs’ tort claims. TVA has also moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), the inverse condemnation claims filed against it by the Blanchard plaintiffs, the Raymond plaintiffs, and the Scofield plaintiffs. In the Motion to Dismiss Punitive Damages and Strike Jury Demand [Doc. 58], TVA moves the Court to dismiss all claims for punitive damages asserted by Plaintiffs on grounds that, pursuant to Federal Rule of Civil Procedure 12(b)(6), punitive damages may not be recovered against TVA because Congress has not expressly authorized such damages against TVA. TVA also moves the Court, pursuant to Federal Rule of Civil Procedure 12(f), to strike Plaintiffs’ demands for a jury because there is no right to a jury trial against TVA in these cases. I. BACKGROUND AND FACTS TVA is a corporate agency and instrumentality of the United States created by and existing pursuant to the Tennessee Valley Authority Act of 1933 (the “TVA Act”). See 16 U.S.C. §§ 831 et seq.; see also Hill v. United States Dep’t of Labor, 65 F.3d 1331, 1333 (6th Cir.1995). TVA was created by Congress “in the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins.” 16 U.S.C. § 831. Through amendments to the TVA Act, Congress extended TVA’s purposes to “law enforcement ... in the area of jurisdiction,” Id. § 831c-3(a), and “[t]o aid further the proper use, conservation, and development of the natural resources of the Tennessee River drainage basin and of such adjoining territory as may be related to or materially affected by the development consequent to this chapter, and to provide for the general welfare of the citizens of said areas .... ” Id. § 831u; see also United States ex rel. TVA v. Welch, 327 U.S. 546, 553-54, 66 S.Ct. 715, 90 L.Ed. 843 (1946). The TVA Act also specifically authorizes TVA “[t]o produce, distribute, and sell electric power.” 16 U.S.C. § 831d(i); see also Memphis Power & Light Co. v. City of Memphis, 172 Tenn. 346, 112 S.W.2d 817, 822 (1937) (stating that “[t]he TVA is a public instrumentality and holds the electric energy generated at its dams in trust for the people of the whole country”). In addition, the TVA Act gives TVA the power to exercise the right of eminent domain, to acquire real estate, and to take title to real estate in the name of the United States to accomplish the purposes of the TVA Act, including “the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects....” 16 U.S.C. §§ 831c(h)-(i). In 1939, pursuant to the TVA Act, Congress authorized construction of the Watts Bar Project, a project which included the Watts Bar Dam, lock, hydroelectric plant, and the Watts Bar Reservoir [Doc. 44-1, pp. 94 — 95]. Congressional appropriations for the Watts Bar Project included funds for the purchase of approximately 49,500 acres of land for the Watts Bar Reservoir [Id., p. 98]. TVA’s purchase of the Watts Bar Reservoir included the land underlying what is known locally as the Swan Pond embayment and its shoreline strip [Id., p. 99]. In 1951, Congress appropriated funds for the construction of the Kingston .Fossil Plant (the “KIF plant”), a coal-fired electricity generation plant [Doc. 44-1, pp. 101-02]. That same year, TVA acquired, in the name of the United States, a peninsula at the confluence of the Clinch and Emory River embayments' of the Watts Bar Reservoir [Id.]. Construction of the KIF plant began on that peninsula in 1951 [7d]. The KIF plant produced coal ash, a byproduct of when coal is burned for electricity generation [7d]. TVA selected Swan Pond, located immediately north of the peninsula, as the disposal site for the coal ash byproduct [7d, p. 102]. Swan Pond consists of a main ash pond, a dredged ash disposal area, and a stilling pool [Doc. 44-1, p. 164]. Coal ash produced at the KIF plant is transported to the main ash pond as slurry through two sluice channels, one for coarser bottom ash and one for finer fly ash [7d], When the slurry flows through the sluice channels, the coarser bottom ash settles to the bottom [Id.]. This coarse bottom ash is then removed from the sluice channels through mechanical means, such as drag lines, and used for dike construction [Id]. The finer fly ash flows through the sluice channels and into the main ash pond where it is dredged, normally by hydraulic means, and deposited in the ash disposal area, which is further divided into dredge cells by internal dikes [Id]. Excess water in the dredged ash disposal area drains back to the main ash pond and then to the stilling pool [Id]. The excess water then flows through the discharge channel and into the KIF plant’s water intake channel, and then into the Watts Bar Reservoir [7d]. Excess water seeps down through the finer fly ash in the dredge cells and into the groundwater, which transports it into the Watts Bar Reservoir [Id]. According to TVA, under its inspection program for coal ash disposal at the Swan Pond facilities, stability inspections at the Swan Pond facilities have been conducted since at least 1967 [Doc. 43, ¶ 2]. TVA asserts that the reports generated by these stability inspections were reviewed and used by TVA management to evaluate the safety and effectiveness of the Swan Pond facilities and to determine whether the facilities were in compliance with applicable regulations [7c?.]. TVA also asserts that the Swan Pond facilities were covered by two permits issued by the Tennessee Department of Environment and Conservation (“TDEC”): a National Pollutant Discharge Elimination System permit (the “NPDES permit”), and a Class II Landfill Permit (the “Landfill Permit”) [Doc. 44-1, pp. 114, 105]. In September 2006, TVA asserts that TDEC approved TVA’s request for a major modification of the Landfill Permit, authorizing the continued deposit of coal ash at the Swan Pond facilities up to an elevation of 868 feet [Id., pp. 140, 242]. Since 2000, according to TVA, engineers from TDEC have performed regular inspections of the Swan Pond facilities [Id., p. 287]. Between 2003 and 2007, TVA asserts that it considered alternatives to the wet coal ash disposal system at the Swan Pond facilities [Doc. 42, ¶ 3] After considering the alternatives, TVA asserts that it made the decision to continue operating the Swan Pond facilities pursuant to a wet coal ash disposal system [Id.]. In November 2003, a “blowout,” or seepage, occurred in a dike on one side of the dredged ash cells [Id.; Doc. 44-2, p. 68]. Following the 2003 blowout, TVA asserts that it consulted with two engineering firms, Parsons Energy & Chemicals Group Inc. (“Parsons E & C”) and Geosyntec Consultants, Inc. (“Geosyntec”), to determine the cause of the blowout and to evaluate alternatives to permit the continued use of the Swan Pond facilities [Doc. 43, ¶ 3; Doc. 44-2, p. 68]. Parsons E & C concluded that the 2003 blowout was not due to “slope stability,” but to other factors [Doc. 44-1, p. 278]. TVA asserts that after considering the findings of Parsons E & C and Geosyntec, and after evaluating various alternatives, it constructed an additional trench drain system to address the cause of the 2003 blowout [Doc. 43, ¶ 3; Doc. 44-2, p. 7] Around 2004, TVA asserts that it considered and evaluated various long-term alternatives for the Swan Pond facilities [Doc. 43, ¶ 4]. In furtherance of this long-term analysis, TVA consulted with Parsons E & C who conducted an engineering stability analysis of the Swan Pond dredge cell area and the adjoining main ash pond area [Id.]. TVA asserts that Parsons E & C evaluated the safety of continuing to stack fly ash at the Swan Pond facilities from the existing elevation level of 810 feet, up to a future elevation level of 868 feet [Doc. 44-1, p. 242], Parsons E & C concluded that stacking the fly ash to the proposed elevation of 868 feet was likely to make the area “stable during any stage of construction and after completion of construction^] including during the occurrence of the design seismic event.” [Id., p. 266]. TVA asserts that in reliance on Parson E & C’s evaluation, it submitted an application to TDEC in June 2004 for a major modification of its Landfill Permit [Doc. 43, ¶ 5]. On September 12, 2006, TDEC approved the permit modification [Id.; Doc. 44-1, p. 140]. In November 2006, a blowout occurred at the same location as the November 2003 blowout [Doc. 43, ¶ 6]. TVA asserts that it retained Geosyntec to determine the cause of the blowout and to develop alternatives for the disposal of the coal ash [Id]. Eight alternatives were identified, including conversion of the Swan Pond facilities to a dry coal ash disposal system instead of the wet coal ash disposal system [Id.]. TVA asserts that the alternatives were ranked according to factors such as cost, reliability, time, regulatory compliance, and the possibility of dike failure [Id., ¶ 6; Doc. 44-2, pp. 74-75]. After using these factors to evaluate the alternatives identified by Geosyntec, TVA asserts that it implemented localized toe drain improvements with additional monitoring, maintenance, and surface water improvements [Doc. 43, ¶ 6; Doc. 44-2, p. 76], TVA states that coal ash disposal operations at the Swan Pond facilities resumed in 2008 in accordance with the modified Landfill Permit, approved by TDEC on September 12, 2006 [Doc. 43, ¶¶ 6, 7; Doc. 44-2, p. 19]. As of December 22, 2008, the height of the coal ash in the cell area at the Swan Pond facilities had increased from 810 feet, the 2004 elevation level, to an elevation level of 820 feet [Doc. 43, ¶ 7], On December 22, 2008, one of the coal ash containment dikes at the Swan Pond facilities failed [see Doc. 44, pp. 4-5; Doc. 82, p. 12]. As a result of the dike failure, approximately 5.4 million cubic yards of coal ash sludge spilled from the 84-acre containment area of the Swan Pond facilities to an adjacent area of about 300 acres, consisting of primarily the Watts Bar Reservoir, the Clinch and Emory Rivers, and government and privately owned shoreline properties [see Doc. 44, pp. 4-5; Doc. 82, p. 12]. Following the coal ash spill, TVA and the Environmental Protection Agency (the “EPA”), responded pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. ch. 103, (“CERCLA”), and the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. pt. 300 (2008) (the “NCP”). During the initial emergency response phase, and pursuant to CERCLA, Executive Order No. 12,-580, and the NCP, the EPA delegated its authority to TVA to engage in coal ash removal actions. See 42 U.S.C. § § 9604(a)-(b); id. § 9615 (authorizing the President to delegate duties and powers under CERCLA); 40 C.F.R. § 300.5. The EPA terminated the initial emergency response phase on January 11, 2009 and transferred lead agency authority to TVA for further clean-up, removal, and remediation actions [Doc. 44-2, p. 77], Since January 11, 2009, all coal ash response and removal actions have been within TVA’s delegated authority under CERCLA and Executive Order No. 12,580 [Doc. 44-2, p. 77]. As part of TVA’s response and removal actions, TVA asserts that it provided hotel rooms, meals, transportation, and other services to residents whose homes were in the vicinity of the Swan Pond area [Id., pp. 84, 97]. TVA also asserts that it mobilized equipment to help clean and repair waterways and land affected by the spill, that it drained creeks, vacuumed and cleared debris, restored gas and water supply to surrounding homes, sampled air, soil, and water, established a Community Outreach Center in Kingston, and set up an informational website with spill information [Id.]. TVA also asserts that it instituted a program to purchase privately owned properties in the immediate area of the spill [Id., p. 145]. On January 12, 2009, in a “coordinated oversight approach” adopted by TDEC and the EPA, TDEC ordered TVA to comply with an order directing it to engage in various spill response and remediation efforts, implement removal measures, assess all of TVA’s coal ash disposal facilities, submit reports detailing and analyzing the causes of the dike failure at the Swan Pond facilities, and submit a Corrective Action Plan (the “CAP”) [Doc. 44-1, p. 81]. TVA asserts that it has since been acting in compliance with this order. II. THE COAL ASH SPILL INVESTIGATIVE REPORTS Subsequent to the filing of TVA’s Motion to Dismiss or for Summary Judgment, three separate investigative reports regarding the coal ash spill at the Swan Pond facilities were issued. One, a report by the engineering consulting firm, the “AECOM Root Cause Analysis of TVA Kingston Dredge Pond Failure on December 22, 2008” (the “AECOM Report”), was released on June 25, 2009; two, a report by the law firm McKenna Long & Aldridge LLP, titled “A Report to the Board of Directors of the Tennessee Valley Authority Regarding Kingston Factual Findings” (the “KIF Report”), was submitted to the TVA board of directors on July 21, 2009; and three, a report by the Office of the Inspector General for TVA, titled, the “Inspection Report, a Review of the Kingston Fossil Plant Ash Spill Root Cause Study and Observations About Ash Management” (the “OIG Report”), was issued on July 23, 2009. Filed with their response brief to TVA’s Motion to Dismiss or for Summary Judgment, Plaintiffs filed a summary or complete copy of each of these reports and discussed and cited to the reports in their response brief. In TVA’s reply brief, TVA also addressed, discussed, and cited the three investigative reports. Because both TVA and Plaintiffs discuss these three reports in their respective briefs, and because such reports are relevant to the issues addressed by both parties, a short description of the reports follows. A. The AECOM Report The AECOM Report, issued by AECOM, an engineering consultant firm, was commissioned by TVA in January 2009 for the purpose of establishing the physical root causes (the physical mechanics) of the December 22, 2008 spill [see Doc. 91-1, p. 47]. The AECOM Report concludes that four concurrent factors were the most probable root causes for the failure of the coal ash containment dike: (1) an increased load on the dike due to the higher elevation of the ash stack and the continued use of the Swan Pond facilities for coal ash disposal; (2) the setback of the dredge cell dike from the outer containment dike which placed the dredged cell dike over a wet ash foundation; (3) an unusually weak silt/ash “slimes” layer at the bottom of the wet ash foundation; and (4) a lack of consolidation of the wet ash underlying the dredge cell dike leading to the potential for static liquefaction [Id., pp. 138-40; Doc. 83-2; Doc. 90, pp. 4-5]. B. The KIF Report The KIF Report, issued by a law firm retained by TVA’s Board of Directors in January 2009, focused on the facts of the coal ash spill and TVA’s management practices relating to the Swan Pond facilities and other similar coal ash disposal facilities [Doc. 82-2; Doc. 91, pp. 3-4]. The purpose of the KIF Report was to “provide a basis ... to improve TVA’s governance, systems and controls to reduce the likelihood of similar ... incidents[J” [Doc. 82-2, p. 2]. The KIF Report found that TVA management “did not have adequate systems, control and procedures in place prior to the Kingston Spill” and “TVA’s Byproduct Facilities operated pursuant to decades of lore, without formalized standards or procedures” and recommended a “comprehensive TVA remediation program owned by senior management under Board oversight.” [Id., p. 32]. C. The OIG Report Following the issuance of the AECOM Report and its root cause analysis, TVA’s Office of Inspector General (the “OIG”) hired another engineering consultant, Marshall Miller and Associates, Inc. (“Marshall Miller”), to perform an independent review of AECOM’s root cause analysis [see Long Doc. 140-3, p. 5]. The OIG also instructed Marshall Miller to provide observations about the Swan Pond facilities and to report on TVA’s management practices related to the Swan Pond facilities [Id.]. The OIG Report is the result of that review. While the OIG Report concurs with the conclusions of the AECOM Report regarding the four most probable root causes contributing to the dike failure, the OIG Report criticizes TVA’s decision to limit AECOM’s scope of work to a root cause analysis and states that the AECOM Report “overemphasized” and focused disproportionately on the “slimes” foundation layer as one of the most probable root factors/causes of the spill [Doc. 140-3, p. 5]. The OIG Report specifically lists the failure of TVA and the AECOM Report to acknowledge or report on TVA’s management practices at the Swan Pond facilities that may have contributed to the December 22, 2008 spill [Id.]. The OIG Report found that, “the root cause analysis commissioned by TVA did not investigate what management practices or policies and procedures allowed conditions to advance to the critical stage that precipitated the spill.” [Id., pp. 8-9]. III. PLAINTIFFS AND PROCEDURAL HISTORY Following the coal ash spill on December 22, 2008, and during TVA’s ongoing removal and remediation efforts, Plaintiffs in the seven captioned cases filed seven separate complaints against TVA. Plaintiffs in the seven cases are differently situated and not all claims are alike. However, Plaintiffs have asserted similar claims and causes of action and each complaint is alike in that each has asserted tort claims against TVA. In Larry Mays v. TVA, 3:09-CV-6 (“Mays ”), the plaintiff, suing on behalf of himself and others similarly situated, is an individual who claims to be a riparian owner on the Clinch River portion of the Watts Bar Reservoir downstream from the KIF plant [Mays Complaint, Doc. 1], The Mays plaintiff seeks to represent a class of persons defined as riparian owners downstream from the KIF plant on the Clinch and Emory River portions of the Watts Bar Reservoir [Id.]. In his complaint, the Mays plaintiff asserts a claim for private nuisance and seeks compensatory damages [Id.]. In Mary Margaret Blanchard, et al. v. TVA 3:09-CV-9 {“Blanchard”), plaintiffs are eight individuals who have sued on behalf of themselves and others similarly situated [Blanchard Complaint, Doc. 1; Blanchard Amended Complaint, Doc. 61]. The Blanchard plaintiffs assert causes of action based in tort law — negligence, negligence per se, gross negligence, trespass, nuisance, and strict liability. [Blanchard Amended Complaint, Doc. 61]. The Blanchard plaintiffs also assert claims for inverse condemnation [Id.]. In their complaint, the Blanchard plaintiffs seek compensatory and punitive damages and injunctive relief relating to spill remediation, including an order directing TVA to fund medical monitoring [Id.]. In Robert O. Giltnane, et al. v. TVA 3:09-CV-14 (“Giltnane ”), plaintiffs are six individuals and a business who have sued on behalf of themselves and others similarly situated [Giltnane Complaint, Doc. 1]. The Giltnane plaintiffs seek to represent a class of persons who own property, reside, or conduct business within a 25-mile radius of the KIF plant [Id.]. The Giltnane plaintiffs assert causes of action in tort— negligent trespass, intentional trespass, negligence, gross negligence, strict liability, nuisance, and negligence per se [Id.]. In their complaint, the Giltnane plaintiffs seek compensatory and punitive damages and injunctive relief relating to spill remediation, including an order directing TVA to fund medical monitoring [Id.]. In Jot Raymond, et al. v. TVA 3:09-CV-48 (“Raymond”), plaintiffs are twenty-four property owners in the area of the KIF plant [Raymond Second Amended Complaint, Doc. 53; Raymond Third Amended Complaint, Doc. 98]. The Raymond plaintiffs assert causes of action based in tort law — negligence, negligence per se, gross negligence, trespass, nuisance, and strict liability [Raymond Third Amended Complaint, Doc. 98]. The Raymond plaintiffs also assert claims for inverse condemnation [Id.]. In their complaint, the Raymond plaintiffs seek compensatory and punitive damages and injunctive relief [Id.]. In Anita Auchard, et al. v. TVA, 3:09-CV-54 (“Auchard”), plaintiffs are ninety-one individuals who allegedly own property and/or reside in the vicinity of the coal ash spill and have sued on behalf of themselves and eighteen minors [.Auchard Complaint, Doc. 1; Auchard Amended Complaint, Doc. 108]. The Auchard plaintiffs assert causes of action based in tort law — public nuisance, statutory public nuisance, private nuisance, trespass, negligence, gross negligence, negligence per se, negligent infliction of emotional distress, intentional infliction of emotional distress, strict liability for ultra-hazardous activity, and increased risk of future harm [Auchard Complaint, Doc. 1]. In their complaint, the Auchard plaintiffs seek compensatory and punitive damages and injunctive relief relating to spill remediation, including an order directing TVA to fund medical monitoring Ud.]. In Lee Scofield, et al. v. TVA 3:09-CV-64 (“Scofield ”), plaintiffs are eighteen individuals and a farm business [Scofield Amended Complaint, Doc. 52; Scofield Fourth Amended Complaint, Doc. 99]. The Scofield plaintiffs assert causes of action based in tort law — negligence, negligence per se, gross negligence, trespass, nuisance, and strict liability [Scofield Fourth Amended Complaint, Doc. 99]. The Scofield plaintiffs also assert claims for inverse condemnation [Id.]. In their complaint, the Scofield plaintiffs seek compensatory and punitive damages and injunctive relief relating to spill remediation [Id.] In Vicky Long, et al. v. TVA 3:09-CV-114 (“Long ”), plaintiffs are forty-three individuals who own property and/or reside in the vicinity of the KIF plant or do business in the area [Long Complaint, Doc. 2; Long Amended Complaint, Doc. 191]. The Long plaintiffs have sued on behalf of themselves and others similarly situated and seek to represent a class of all similarly situated persons within a 10-mile radius of the KIF plant who have been injured in some way by the ash spill [Long Amended Complaint, Doc. 191]. The Long plaintiffs assert causes of action based in tort law— negligence, gross negligence, recklessness, willful misconduct, wanton misconduct, negligence per se, trespass, nuisance, ultra-hazardous activity, misrepresentation/fraud, medical monitoring, intentional infliction of emotional distress, and negligence infliction of emotional distress [Id]. In their complaint, the Long plaintiffs seek compensatory and punitive damages and injunctive relief relating to spill remediation, including an order directing TVA to fund medical monitoring. On February 26, 2009, the Court held an initial case management conference [Doc. 45, p. 2]. At the conference, counsel for TVA expressed its intention to file in each pending case a dispositive motion asserting that the federal discretionary function doctrine operates as a complete bar to Plaintiffs’ tort claims [Id.]. Subsequent to the conference, the Court entered the Initial Case Management Order No. 1 [Id.], directing TVA to file its dispositive motion asserting the discretionary function doctrine in all pending cases, together with a consolidated supporting brief [/<£]. The Court then ordered Plaintiffs to file a joint brief in response, to be followed by TVA’s reply [Id.]. To the extent Plaintiffs filed more than one response, the Court permitted TVA to file a separate reply to each separate response [Id., pp. 2-3]. With several small adjustments to the Initial Case Management Order No. 1, the parties have complied with the Court’s order. On April 17, 2009, TVA filed the Motion to Dismiss or for Summary Judgment [Doc. 41] in all cases pending at that time. All Plaintiffs except for the Mays plaintiff filed a joint response in opposition [Doc. 82] to TVA’s Motion to Dismiss or for Summary Judgment. The Mays plaintiff filed a response in opposition unique to his case [Mays, Doc. 60], but also manifested his intent to join in and adopt the statement of facts and the legal argument and authorities of Plaintiffs in their joint response in opposition [Id., n. 1], TVA filed a reply to Plaintiffs’ joint response [Doc. 91]. TVA’s reply also addressed the issues raised in the response filed by the Mays plaintiff [Id.]. TVA filed a supplemental brief [Doc. 100], to which Plaintiffs responded [Doc. 101], Plaintiffs filed a supplemental brief [Doc. 103], to which TVA responded [Doc. 104], TVA then filed another supplemental brief [Doc. 109]. On May 21, 2009, TVA filed the Motion to Dismiss Punitive Damages and Jury Demand [Doc. 58]. TVA’s request to the Court to dismiss the punitive damages claims applies to the Blanchard plaintiffs, the Giltnane plaintiffs, the Raymond plaintiffs, the Scofield plaintiffs, and the Long plaintiffs. TVA’s request that the Court strike the jury demands applies to all Plaintiffs in the seven captioned cases. Plaintiffs filed a joint response in opposition [Doc. 77] and two declarations with attached exhibits [Docs. 78, 79]. TVA filed a reply [Doc. 87]. The Court has carefully reviewed the parties’ briefs, supporting documents, exhibits, and the relevant law. For the reasons stated herein, TVA’s Motion to Dismiss or for Summary Judgment [Doc. 41] will be granted in part and denied in part. TVA’s request that the Court grant summary judgment in its favor as to Plaintiffs’ tort claims pertaining to the use and maintenance of the Swan Pond facilities is DENIED to the extent stated in this Order. TVA’s request that the Court grant summary judgment in its favor as to Plaintiffs’ tort claims pertaining to TVA’s response, cleanup, and remediation activities at the Swan Pond facilities is GRANTED. TVA’s request that the Court dismiss the inverse condemnation claims in Blanchard, Raymond, and Scofield is DENIED. Finally, TVA’s Motion to Dismiss Punitive Damages and Strike Jury Demand is GRANTED and Plaintiffs’ requests for punitive damages against TVA is DISMISSED and the Court STRIKES Plaintiffs’ requests for jury trials. IV. TVA’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT In TVA’s Motion to Dismiss or for Summary Judgment, TVA asserts that the federal discretionary function doctrine applies to TVA, applies to all Plaintiffs’ tort claims, and requires the dismissal of all Plaintiffs’ tort claims for lack of justiciability and failure to state a claim for which relief can be granted. Alternatively, TVA requests that the Court grant summary judgment in favor of TVA as to all Plaintiffs’ tort claims. TVA also asserts that the inverse condemnation claims of the Blanchard plaintiffs, the Raymond plaintiffs, and the Scofield plaintiffs should be dismissed for failure to state a claim upon which relief can be granted. In opposition, Plaintiffs assert that the federal discretionary function doctrine is not applicable to TVA and Congress expressly waived TVA’s sovereign immunity with its inclusion of the “sue and be sued” clause in the TVA Act. See 16 U.S.C. § 831c(b). Alternatively, Plaintiffs assert that even if the discretionary function doctrine is sometimes applicable to TVA, it is not applicable to these cases because the conduct challenged by Plaintiffs involves TVA’s power program activities, which Plaintiffs assert are commercial activities, not activities conducted as part of TVA’s governmental function. Plaintiffs then assert that if the Court determines that the discretionary function doctrine should apply to TVA, it does not apply to these cases because the conduct challenged by Plaintiffs is not the type of conduct covered by the discretionary function doctrine. Plaintiffs also assert that the Clean Water Act (the “CWA”), 33 U.S.C. §§ 1251 et seq., and the Resource Conservation and Recovery Act (the “RCRA”), 42 U.S.C. §§ 6901 et seq., contain waivers of sovereign immunity which authorize Plaintiffs’ tort claims against TVA. Finally, the Blanchard plaintiffs, the Raymond plaintiffs, and the Scofield plaintiffs assert that they have amended their claims for inverse condemnation in their respective complaints and the amended claims are sufficient to state inverse condemnation claims. On a motion to dismiss for lack of justiciability pursuant to Federal Rule of Civil Procedure 12(b)(1), a court will determine whether the allegations of the complaint are sufficient to confer subject matter jurisdiction on the court. See Fed.R.Civ.P. 12(b)(1). On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a court is charged with determining if the facts in the complaint state a valid claim, and the court is not to look beyond the facts alleged in the complaint. See Fed.R.Civ.P. 12(b)(6); Ashcroft v. Iqbal, — U.S.-, -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). On a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, a court may look beyond the complaint to determine whether the undisputed facts in the record support judgment as a matter of law for one party or another. See Fed.R.Civ.P. 56. Given the substantial record of pleadings, briefs, reports, exhibits, and documents that have been filed in this litigation, and the Court’s consideration of such filings, the Court will consider TVA’s request that all Plaintiffs’ tort claims be dismissed under the discretionary function doctrine as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. TVA’s request that the inverse condemnation claims be dismissed will be considered pursuant to Federal Rule of Civil Procedure 12(b)(6), as will TVA’s request that Plaintiffs’ punitive damages claims be dismissed. V. ANALYSIS OF THE DISCRETIONARY FUNCTION DOCTRINE A. Standard of Review Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir.2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The judge’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the fact finder. Id. at 249, 106 S.Ct. 2505. The judge does not weigh the evidence, judge the credibility of witnesses, nor determine the truth of the matter. Id. Thus, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. B. The Applicability of the Discretionary Function Doctrine to TVA The TVA Act designates TVA as “an instrumentality and agency of the Government of the United States[J” 16 U.S.C. § 831r. The United States Supreme Court has recognized TVA’s status as a federal agency. See Ashwander v. TVA, 297 U.S. 288, 315, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (referring to TVA as “an agency of the federal government”). The United States Court of Appeals for the Sixth Circuit has held similarly. Matheny v. TVA, 557 F.3d 311, 320 (6th Cir.2009) (stating that “TVA is a “wholly-owned corporate agency and instrumentality of the United States’ ”) (quoting Edwards v. TVA, 255 F.3d 318, 322-23 (6th Cir.2001) (quoting Hill, 65 F.3d at 1333)). Congress and the executive branch have also affirmed TVA’s status as a federal agency within its various corporate roles and functions. TVA has authority to exercise the power of eminent domain in the name of the United States and to acquire property deemed necessary to accomplish the purposes of the TVA Act. See 16 U.S.C. §§ 831c(h)-(i). The TVA Act also specifically authorizes TVA “[t]o produce, distribute, and sell electric power,” 16 U.S.C. § 831d(i), and authorizes TVA to operate and manage properties in furtherance of the purposes of the TVA Act, 16 U.S.C. § 831c(h). TVA employees are covered by the Civil Service Reform Act (the “CSRA”) and the Federal Employees Compensation Act (“FECA”). The EPA has also recognized TVA’s status as a federal agency by its designation of TVA as “lead federal agency” under the NCP and in relation to TVA’s response and remedial activities following the December 22, 2008 coal ash spill. See 40 C.F.R. § 300.5 (explaining the term “lead agency”). Finally, this Court has previously held that TVA is a federal agency. Thus, in accordance with this statutory, legislative, and precedential authority, and consistent with this Court’s prior holdings, this Court concludes that TVA is an instrumentality and agency of the federal government. The discretionary function doctrine generally arises in the context of the Federal Tort Claims Act, 28 U.S.C. § 2680(a), (the “FTCA”), where Congress provided that the waiver of sovereign immunity by the United States does not extend to Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). TVA does not benefit from the discretionary function doctrine as it is embodied in the FTCA. Rather, TVA’s waiver of sovereign immunity is through the “sue and be sued” clause in its own enabling legislation. In addition to the articulation of specific powers and purposes in the TVA Act, the Act also provides that TVA “[m]ay sue or be sued in its corporate name.” 16 U.S.C. § 881c(b). Both the Supreme Court and the Sixth Circuit have interpreted this language as “making the TVA liable to suit in tort, subject to certain exceptions.” United States v. Smith, 499 U.S. 160, 168-69, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (citing Peoples Nat. Bank of Huntsville, Ala. v. Meredith, 812 F.2d 682, 684-85 (11th Cir. 1987)); see also Queen v. TVA, 689 F.2d 80, 85 (6th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983). “Sue and be sued” clauses are presumed to be broad waivers of sovereign immunity unless it is “clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, [and] ... an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense.” FHA v. Burr (“Burr”), 309 U.S. 242, 245, 60 S.Ct. 488, 84 L.Ed. 724 (1940) (footnote omitted); see Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) (quoting Burr, 309 U.S. at 245, 60 S.Ct. 488); Fed. Deposit Ins. Corp. v. Meyer (“Meyer”), 510 U.S. 471, 480-81, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (quoting Burr, 309 U.S. at 245, 60 S.Ct. 488). Plaintiffs argue that the “sue and be sued clause” of the TVA Act expressly waives any claim TVA may have to sovereign immunity because “sue and be sued” clauses are to be “liberally construed” and subject entities to the liability of a private enterprise. In opposition, TVA asserts that because TVA is a governmental agency and instrumentality, its amenability was not intended to be, and has been held not to be, identical to that of private entities. Thus, it is TVA’s position that the discretionary function doctrine is applicable to TVA notwithstanding the “sue and be sued” clause of the TVA Act. While acknowledging that the “sue and be sued” clause in the TVA Act constitutes a “broad waiver of sovereign immunity,” the Sixth Circuit has held that “in certain limited situations the TVA is exempt from liability arising out of the exercise of wholly governmental functions, where the TVA acts solely as the Government’s agent and where the United States itself would not be liable.” Edwards v. TVA 255 F.3d 318, 322 (6th Cir.2001) (quoting Queen, 689 F.2d at 86); see also Fortner v. TVA No. 3:04-CV-363, 2005 WL 2922190 (E.D.Tenn. Nov. 4, 2005); Peoples Nat. Bank of Huntsville, Ala. v. Meredith, 812 F.2d 682, 684-85 (11th Cir.1987). The Sixth Circuit has stated that this non-liability is not an “incident of immunity but the result of the entitlement of the TVA, when it acts solely as a governmental entity.” Queen, 689 F.2d at 86. This exemption from liability for certain “wholly governmental functions” has been analyzed pursuant to the same analysis as that applied to the immunity resulting from the discretionary function doctrine of the FTCA. See, e.g., Edwards, 255 F.3d at 322 (applying the discretionary function doctrine to TVA); Sligh v. TVA 532 F.Supp. 168 (D.C.Tenn.1980) (same); Peoples Nat. Bank of Huntsville, 812 F.2d at 685 (same). Thus, in keeping with the holdings of this Court, and the holdings of other district courts within this circuit, the Court will apply the discretionary function doctrine to TVA when it “acts solely as a governmental entity.” See, e.g., Queen, 689 F.2d at 86; Edwards, 255 F.3d 318; Sligh, 532 F.Supp. 168; Fortner, 2005 WL 2922190. Plaintiffs urge the Court not to apply the discretionary function doctrine to Plaintiffs’ claims because the challenged conduct at issue — conduct relating to TVA’s power programs — does not involve a “wholly governmental” function, and, as a matter of public policy, is not conduct for which TVA should be permitted immunity. TVA asserts that its power program activities are governmental in nature and conduct to which the discretionary function doctrine should apply. Courts have held that TVA is not liable for conduct related to flood control and navigation. See Queen, 689 F.2d at 85-86. Flood control and navigation is conduct Congress explicitly authorized TVA to perform as part of its purpose and function. See 16 U.S.C. § 831 (stating that the purpose of TVA is “to improve navigation ... and to control the destructive flood waters”). The TVA Act also explicitly recognizes TVA’s authority “[t]o produce, distribute, and sell electric power,” 16 U.S.C. § 831d(i), and to acquire, operate, and maintain lands and structures to carry out the purposes of the TVA Act. See id. §§ 831 c(h)-(i). In Queen, the Sixth Circuit affirmed the application of the discretionary function doctrine to power-related conduct TVA was statutorily authorized to engage in, specifically, the statutory authority “ ‘to make studies, experiments and determinations to promote the wider and better use of electric power for agricultural and domestic use, or for small or local industries.’ ” Queen, 689 F.2d at 84 (quoting TVA’s brief which quotes 16 U.S.C. § 831i). In Edwards, the Sixth Circuit affirmed a district court’s application of the discretionary function doctrine to TVA’s conduct in the maintenance of its hydroelectric dams — power-related conduct — and conduct regarding “how [TVA] ... make[s] federal lands safe for visitors.” Edwards, 255 F.3d at 325. Plaintiffs urge the Court to distinguish between the “commercial” and the “governmental” nature or function of TVA’s activities, applying the discretionary function doctrine to the latter but not the former. In doing so, Plaintiffs urge the Court to follow the United States Court of Appeals for the Fourth Circuit in North Carolina v. TVA, 515 F.3d 344 (4th Cir.2008). In North Carolina, the Fourth Circuit declined to apply the discretionary function doctrine to TVA in a case involving emissions from TVA’s fossil fuel plants because “TVA’s power-generating activities are commercial in nature and thus not immune to suit.” North Carolina, 515 F.3d at 350 n. 4. The Court respectfully disagrees with Plaintiffs’ extension of the holding of the Fourth Circuit as it pertains to the facts of these cases, facts involving the failure of a coal ash retainment dike at TVA’s KIF plant, a coal-fired electricity plant. As an initial matter, the Court notes that the holding of North Carolina is contrary to previous decisions by the Sixth Circuit affirming the application of the discretionary function doctrine to TVA when the challenged conduct relates to the operation of dams, flood control, and electric power production. See, e.g., Queen, 689 F.2d at 81-88 (holding that the discretionary function doctrine applies to statements made by a TVA employee regarding TVA’s power production function); Edwards, 255 F.3d at 324-25 (applying the discretionary function doctrine to TVA’s conduct relating to its hydroelectric dams). In addition, this Court will not parse the conduct or activities of TVA into the distinct categories of commercial and governmental conduct because the application of such distinct categories are bound to lead to disparate and inconsistent results. Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955), affirming, In re Texas City Disaster Litigation, 197 F.2d 771 (5th Cir.1952) (en banc) (refusing to apply a governmental or commercial distinction because “it would thus push the courts into the ‘non-governmental’ — ‘governmental’ quagmire that has long plagued the law of municipal corporations”); see also United States v. S.A. Empresa de Viacao Aerea Rio Grandense (“Varig Airlines”), 467 U.S. 797, 812, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). This is especially so when, as here, the challenged conduct and activities are in furtherance of a function that TVA is explicitly authorized to perform by the TVA Act — namely, electric power production and distribution. See 16 U.S.C. § 831d(Z). In sum, the Court will consider TVA’s status as a governmental agency and instrumentality, and whether its conduct in these cases was in furtherance of activities, a purpose, and a function that TVA was statutorily authorized to pursue. Because TVA was authorized by Congress to “produce, distribute, and sell electric power,” 16 U.S.C. § 831 d(l), and to use and develop technology for the generation of electric power, Congress made the governmental choice of authorizing TVA to provide communities with various types of electric power. Such conduct in a federally created agency and instrumentality — the exercise of a statutorily authorized purpose— constitutes the exercise of a “governmental function” to which the discretionary function doctrine applies. Accordingly, the Court will apply the discretionary function doctrine to TVA and its conduct relating to its power production purpose and function, thus encompassing the challenged conduct in these cases. C. The Gaubert Test In United States v. Gaubert, the Supreme Court established a two-part test to be applied in determining whether a particular claim falls under the discretionary function doctrine to the federal government’s waiver of sovereign immunity. See United States v. Gaubert, 499 U.S. 315, 322-25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States (“Berkovitz”), 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); see also Rosebush v. United States, 119 F.3d 438, 441 (6th Cir.1997). The first part of the Gaubert test requires a determination of whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice. Gaubert, 499 U.S. at 323-24, 111 S.Ct. 1267. If so, the discretionary function doctrine does not apply because there was no element of judgment or choice in the challenged conduct. Id. at 322, 111 S.Ct. 1267. “The requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’ ” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). If the challenged conduct is determined to involve an element of judgment, the second part of the Gaubert test looks to see “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). “[T]he purpose of the exception is to prevent judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 323, 111 S.Ct. 1267 (citing Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755). The exception, when properly construed, protects only governmental actions and decisions based on considerations of public policy. Id. (quoting Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954). “In sum, the discretionary function doctrine insulates the government from liability if the action challenged in the case involves the permissible exercise of policy judgment.” Berkovitz, 486 U.S. at 537,108 S.Ct. 1954 In determining whether the discretionary function doctrine applies to the conduct challenged by Plaintiffs in these cases, the first step is to determine exactly what conduct is at issue. Rosebush v. United States, 119 F.3d 438, 441 (6th Cir.1997) (citing Autery v. United States, 992 F.2d 1523, 1527-28 (11th Cir.1993)). TVA asserts that Plaintiffs’ tort claims and requests for relief challenge two different kinds of conduct: (1) TVA’s continuing maintenance and use of the Swan Pond facilities in the time period leading up to the December 22, 2008 catastrophic dike failure, and (2) TVA’s coal ash spill removal and remediation conduct. [Doc. 41, pp. 30-31]. Plaintiffs do not seem to dispute this classification of the conduct challenged conduct and the Court finds no reason to disagree. D. TVA’s Continuing Use and Maintenance of the Swan Pond Facilities TVA asserts that its conduct in continuing to use and maintain the Swan Pond facilities in the time period leading up to the December 22, 2008 coal ash spill satisfies steps one and two of the Gaubert test. TVA argues that Plaintiffs’ complaints do not allege that TVA’s continued use and maintenance of the Swan Pond facilities violated, or was different from, any mandatory statute, regulation, or policy dictating a specific course of conduct in the use and maintenance of coal ash facilities, thus satisfying the first part of the Gaubert test. TVA also argues that its conduct in continuing to use and maintain the Swan Pond facilities is the type of conduct that is susceptible to policy analysis, thus satisfying the second part of the Gaubert test. In opposition, Plaintiffs argue that TVA cannot satisfy the first part of the Gaubert test because TVA’s conduct in continuing to use and maintain the Swan Pond facilities constituted violations of federal and state laws and TVA’s internal mandatory policies and procedures. Plaintiffs also argue that even if TVA’s conduct did not violate a mandatory law, policy, or procedure, its conduct was not based on public policy considerations and thus fails to satisfy the second part of the Gaubert test. 1. Whether TVA’s Use and Maintenance of the Swan Pond Facilities was in Violation of a Mandatory Federal Statute, Regulation, or Policy Which Dictated a Specific Course of Conduct For purposes of the discretionary function doctrine, a controlling statute, regulation, or administrative policy must dictate a specific course of action relevant to the challenged conduct. Rosebush, 119 F.3d at 442; see Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954 (stating that “the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow”). Thus, the proper inquiry for purposes of the discretionary function doctrine is whether the challenged conduct violated a governing, specific, mandatory directive. For purposes of the first part of the Gaubert test, it is not the ultimate result of the challenged conduct and whether that result violated a specific statute, regulation or policy, but whether there was a violation of a specific, mandatory directive in the conduct leading up to the ultimate result. See, e.g., Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755. At this stage of the inquiry, the issue of whether the challenged conduct was negligent is irrelevant. Rosebush, 119 F.3d at 442 (citing Autery, 992 F.2d at 1527-28). Plaintiffs claim that TVA’s conduct in continuing to use and maintain the Swan Pond facilities violated federal and state laws, regulations, and internal policies and procedures promulgated by TVA. Because the first part of the Gaubert test requires a mandatory statute, regulation, or policy that allows no judgment or choice, the Court now inquires whether any of the statutes, regulations, policies, or procedures cited by Plaintiffs prescribe and require a specific course of conduct which TVA failed to follow. GaubeH, 499 U.S. at 323-24, 111 S.Ct. 1267; Berkovitz, 486 U.S. at 536,108 S.Ct. 1954. a. The Tennessee Solid Waste Disposal Act and the Tennessee Solid Waste Rules Plaintiffs allege that TVA violated the Tennessee Solid Waste Disposal Act, T.C.A. §§ 68-211-101 et seq. (the “Tennessee Waste Act”), which provides for the promulgation of the Tennessee Solid Waste Rules (the “Tennessee Solid Waste Rules”), Tenn. Comp. R. & Reg. §§ 1200-1-7-.01 et seq. The Tennessee Solid Waste Rules govern solid waste disposal in Tennessee and require that solid waste disposal facilities operate in accordance with a permit from TDEC. See Tenn. Comp. R. & Reg. § 1200-l-7-.02(b)(l). Plaintiffs argue that TVA constructed and operated parts of the Swan Pond facilities without first receiving a permit, that TVA was late in applying for a permit, and that TVA violated the permit application requirements by “failing to describe the hydrogeology of the site adequately.” [Doc. 82, pp. 43-45]. In response, TVA asserts that it applied for a permit from TDEC after being informed by TDEC officials that authorization by TDEC was necessary for TVA’s operation of the Swan Pond facilities [Doc. 91, pp. 19, 25]. TVA also asserts that the permit application contained all necessary documentation and reports, including a hydrogeology report that met regulatory requirements [Doc. 44-1, p. 106; Doc. 101, p. 11]. TVA points out that TDEC issued a permit for the Swan Pond facilities on September 26, 2000 [M]. TVA also indicates that the stability analysis and report by Parsons E & C on the Swan Pond facilities was submitted to TDEC as part of TVA’s 2006 request for a permit modification and that this analysis and report appropriately informed the TDEC of the hydrogeology and subterranean foundation conditions at the Swan Pond facilities [Doc. 44-1, p. 244], Upon review of TVA’s submitted exhibits regarding its application for a permit, the permit itself, and the accompanying reports, it appears to the Court that TVA did obtain a permit for the Swan Pond facilities and the documents submitted with the permit application, including the hydrogeology report, complied with the regulatory requirements [Doc. 44-1, p. 106, Doc. 91-1, p. 22], Accordingly, on the record presently before the Court, and because the Swan Pond facilities were operating pursuant to a permit from TDEC at the time of the coal ash spill, as required by the Tennessee Solid Waste Rules and the Tennessee Waste Act, the Court can determine no violation of a specific mandatory directive or course of conduct dictated by the Tennessee Waste Act or the Tennessee Solid Waste Rules in TVA’s use and maintenance of the Swan Pond facilities prior to the coal ash spill. Plaintiffs also argue that the Tennessee Solid Waste Rules require that a facility perform “[p]roper operation and maintenance [which] includes effective performanee, adequate operator staffing and training, and ... adequate process controls, including appropriate quality assurance procedures.” [Doc. 84-6, p. 3]. Thus, Plaintiffs allege that the 2003 blowout, the 2006 blowout, and the December 22, 2008 dike failure all constituted violations of the Tennessee Solid Waste Rules and TVA’s permit for the Swan Pond facilities. Further, Plaintiffs allege that TVA violated its permit for the Swan Pond facilities because the permit required the minimization, to the extent practicable, of the potential for release of solid waste [Id., p. 5]. The prohibition in the Tennessee Solid Waste Rules and TVA’s permit on the release of hazardous substances is not the type of mandatory statute, regulation, or policy allowing no judgment or choice required by the first part of the Gaubert test. See, e.g., Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755. The Gaubert test does not look at the ultimate result of the challenged conduct, which may constitute a violation of relevant regulations or policies, but at whether there was a violation of a specific, mandatory policy in the conduct leading up to the violation. Moreover, a general directive or statement of purpose does not constitute a specific mandatory directive that requires a “precise manner” of performance. See Rosebush, 119 F.3d at 442-43 (finding that requirements to “ ‘effectively administer, operate and maintain recreation sites and areas’ ” are directives that “vest complete discretion” in the governmental agency). Accordingly, the Court does not find that TVA has violated a specific mandatory directive under the Tennessee Waste Act or the Tennessee Solid Waste Rules and thus, in this regard, TVA has satisfied the first part of the Gaubert test. b. The Dam Safety Act and the Federal Guidelines for Dam Safety Plaintiffs also allege that TVA violated the federal Dam Safety Act, 33 U.S.C. § § 467 et seq., and the Federal Guidelines for Dam Safety (“Dam Guidelines”), because TVA should have constructed its coal ash waste impoundment dikes in accordance with the Dam Safety Act and the Dam Guidelines. Plaintiffs also allege that TVA’s construction, maintenance, and inspection of the coal ash impoundment dikes was deficient under the Dam Safety Act and the Dam Guidelines. The Court finds that neither the Dam Safety Act nor the Dam Guidelines involve the type of specific, mandatory directives that dictate a specific course of conduct as required by the Gaubert test. Plaintiffs have not pointed to any specific policies dr regulations that TVA violated under the Dam Safety Act in its use and maintenance of the Swan Pond facilities. Further, despite their title, the Dam Guidelines explicitly state that the guidelines are “not intended as guidelines or standards for the technology of dams” [Doc. 91-1, p. 282], and the Dam Guidelines explicitly recognize that “the degree of application will vary depending on the agency mission and function.” [M]. Thus, in this regard, TVA has satisfied the first part of the Gaubert test. c. The Federal Clean Water Act, the Tennessee Water Quality Control Act, the Federal Clean Air Act, and the Tennessee Air Quality Act Plaintiffs also allege that TVA violated the federal Clean Water Act, 33 U.S.C. § 1311(a) (the “CWA”) and the Tennessee Water Quality Control Act, T.C.A. §§ 69-3-108(b), 69-3-114(b) (the “TWQCA”), because the coal ash flowed into the adjacent Emory and Clinch Rivers and the Watts Bar Reservoir. The CWA and the TWQCA both make it unlawful to discharge pollutants, sewage, or industrial wastes into navigable waters. 33 U.S.C. § 1311(a); T.C.A. § 69-3-108(b)(l), (6). Plaintiffs also allege that TVA violated the federal Clean .Air Act, 42 U.S.C. § 7418 (the “CAA”), and the Tennessee Air Quality Act, Tenn. Comp. R. & Reg. § 1200-3-9-.01(l)(e) (the “TAQA”). The CAA requires compliance with permitting standards for emissions into the air. 42 U.S.C. § 7661a. Plaintiffs argue that because TVA’s permit for the Swan Pond facilities contained limitations on emissions and because TVA is bound to comply with the CAA., the coal ash spill on December 22, 2008 violated the limitations on emissions and therefore violated the CAA. The TAQA requires TVA to report certain fugitive emissions and Plaintiffs argue that TVA violated that requirement because it did not report any fugitive emissions between November 18, 2008 and February 10, 2009 [Doc. 84-2, pp. 47-49, 67-68, 70]. Similar to Plaintiffs’ allegation that TVA violated the Tennessee Solid Waste Rules because the result of the coal ash spill violated a prohibition in the Tennessee Solid Waste Rules on the release of hazardous substances, Plaintiffs’ allegations concerning the CWA, the TWQCA, the CAA, and the TAQA also attack the result of TVA’s challenged conduct — the release of substances into surrounding waterways and the release of emissions into the air following the coal ash spill. Moreover, Plaintiffs have not alleged mandatory and specific courses of action required by the these acts and violated by TVA in the course of its conduct leading up to the coal ash spill. Accordingly, the Court finds that TVA has satisfied the first part of the Gaubert test in this regard. d. TVA’s Internal Policies and Procedures Plaintiffs also allege that TVA violated “the first guiding principle” of the Tennessee Valley Authority 2008 Environmental Policy, a policy statement which provides that “TVA remains committed to complying with environmental laws and regulations with a goal of continuous improvement.” [Doc. 84-12]. However, an agency’s “commitment” to comply with environmental laws and regulations is not a specific, mandatory directive requiring a specific course of conduct. As the Sixth Circuit recognized in Rosebush, general directives to