With the recent court ruling, SELC won its federal Clean Water Act trial against the Tennessee Valley Authority, the nation’s largest public utility, for its coal ash pollution of Tennessee’s Cumberland River. This is the first ruling of its kind in the United States, and it represents a significant step forward in efforts to protect the rivers and lakes of the Southeast from toxic coal ash pollution.
In 2014, the four-lawyer Tennessee office, based in Nashville, initiated the lawsuit on behalf of the Tennessee Clean Water Network and Tennessee Scenic Rivers Association.
The first legal action SELC took in 2014 was to send TVA a federal 60-day Notice of Intent to Sue for permit and Clean Water Act violations. As a result of the notice, just before the conclusion of the 60-day period, the State of Tennessee Department of Environment and Conservation filed an enforcement action against TVA in state court. Shortly thereafter, state officials and TVA entered into an agreed temporary injunction that requires TVA to conduct an intensive study of the scope of contamination at the Gallatin site. SELC intervened on behalf of our clients in that case.
In addition to intervening in the state case, SELC went on to file the federal case, and a trial was held January 30, 2017 through February 2, 2017. After a four-day trial, the chief judge of the federal court in Nashville ordered TVA to excavate and move all of its coal ash at the Gallatin Fossil Plant from leaking, unlined pits constructed over an unknown number of sinkholes to safe, lined storage.
Obtaining this ruling against a utility of TVA’s size was a massive undertaking for SELC’s four-attorney Tennessee office. TVA filed five motions asking the court to throw out all or part of the case and SELC filed hundreds of pages of briefing and expert affidavits to overcome those efforts and get to trial. TVA produced roughly 650,000 pages of documents and there were 276 exhibits in the trial.
TVA argued to the court that there was no connection between the coal ash ponds and the river, that ash was not in contact with the groundwater, and that there were no current leaks of coal ash through sinkholes underneath the unlined, earthen ash pits. TVA asked the court to allow it to close the ponds in place by covering over more than 5 million tons of wet ash and leaving the ash in the ground, where it would remain in contact with the groundwater in perpetuity.
In a 123-page ruling, the chief judge said:
“Giving the Court’s blessing to closure in place at this juncture would amount to nothing less than rolling the dice and hoping that reality bears out TVA’s understandably self-interested contention that closure in place will be adequate... If closure in place did prove inadequate, the likely, if not inevitable, result would be yet more litigation—and, of course, decade after decade of the public simply having to hope that whatever unplanned, incidental leakage that was coming from the impoundments was not enough to do them significant harm… As long as the ash remains where it is in either site, there is every reason to think that the dangers, uncertainties, and conflicts giving rise to this case will survive another twenty years, forty-five years, or more. While the process of closure by removal would not be swift, it would, at least, end… While the burden of closure by removal may be great, it is the only adequate resolution to an untenable situation that has gone on for far too long. From the Court’s privileged vantage point in 2017, and based on all of the evidence presented at trial, it is difficult to imagine why anyone would choose to build an unlined ash waste pond in karst terrain immediately adjacent to a river…Nevertheless, while the decision to build the Ash Pond Complex is in the past, the consequences of that decision continue today, and it now falls on the Court to address them. The way to do so is not to cover over those decades-old mistakes, but to pull them up by their roots. TVA, as the entity responsible for the ponds, must be the entity to do so… TVA will be ordered to excavate the coal ash waste impounded at the Gallatin Plant and remove it to an appropriate lined site that does not pose a substantial risk of discharges into the waters of the United States.”
TVA has 30 days to send a plan to the court for excavation and removal and is required to send periodic updates on its progress. We will review TVA’s submission and monitor its progress.