Environmental Lawyers Win A Legal Round Against TVA Over Gallatin Power Plant

Lawyers are redoubling their efforts to get TVA to remove coal ash from an unlined pit on the Cumberland River. The Southern Environmental Law Center argues the utility is trying to get around federal Clean Water Act requirements and state regulations.

There are two forms of litigation — federal and state — surrounding the Gallatin fossil plant. And, they both are “efforts to convince and require TVA to address its dangerous and polluting coal ash storage at Gallatin,” says Frank Holleman, senior attorney at SELC.

Coal ash is toxic sludge that’s left over when a coal-fired power plant burns the coal to produce electricity. A 2016 study from Duke University showed this material has dangerous elements like arsenic, lead, mercury and selenium, among others. And when it’s located next to a water supply, it can potentially leak those contaminants into groundwater, which can be used for drinking.

Approximately 11.5 million cubic yards of coal ash are stored at the Gallatin site, and the ponds cover 476 acres. The Southern Environmental Law Center has brought the suit against TVA because these ponds are “wet.” In other words, the ash is stored in a type of reservoir.

And, the Gallatin ponds are unlined, sitting on top of porous limestone, which has underground sinkholes and fissures. EPA data estimates residents living near such sites — unlined impoundments — have a one in fifty chance of getting cancer from exposure to these chemicals.

SELC brought the federal case against TVA, arguing this infrastructure means contaminants from TVA’s coal ash ponds are certainly leaking into the Cumberland river, which feeds directly into the water supply for Nashville and surrounding areas. The case argues this is a violation of the national Clean Water Act, a 1972 law which regulates pollutant discharges into water supplies and gives the EPA regulatory power over the issue.

In August 2017, a U.S. district court found TVA is violating the Clean Water Act at the Gallatin site. That decision would have required the utility remove the ash from these unlined ponds and put it into safe storage. But in September 2018, an appeals court overturned that decision.

At the same time, the utility has been appealing a lawsuit brought by the state, which claims Gallatin’s coal ash ponds not only violate national clean water laws, but also Tennessee’s environmental laws. TVA has been trying to move the case to federal court for the past couple of years.

But, environmental lawyers are fighting back. Holleman says TVA has been engaging in legal maneuvering and delay through its series of appeals.

“It’s a litigation tactic or litigation gamesmanship where TVA is trying to avoid its pollution of the Cumberland River,” said Holleman.

This week, TVA’s lawyers submitted a motion to dismiss their appeal on having the state case be heard in federal court. Now it’s back solidly in the state’s hands. State regulators can move forward with the case and ask for a trial date.

And this month, the SELC submitted a petition for a rehearing en banc — before a full panel of judges — on the federal case. They also filed a brief stating TVA’s appeals on the state case are not legitimate.

A spokesperson for TVA says the utility is committed to safely handling its ash at the Gallatin plant.

“TVA is committed to protecting the environment. We are in the process of moving from wet to dry storage of coal ash and other coal combustion residuals at Gallatin and all of our other coal-fired generating sites. This commitment was made by the TVA board in 2009,” wrote Scott Brooks in an email to WPLN.