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Federal judge sides with environmental groups, against TVA in coal ash suit

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Federal judge sides with environmental groups, against TVA in coal ash suit

A federal judge has sided with a coalition of environmental groups in a case over coal ash byproduct contamination stemming from the Tennessee Valley Authority's Gallatin fossil plant in Sumner County, Tenn.

Judge Waverly Crenshaw Jr. of the U.S. District Court for the Middle District of Tennessee on Aug. 4 ordered the TVA to excavate the coal ash waste impounded at Gallatin and move it to an "appropriate lined site that does not pose a substantial risk of discharges into the waters of the United States."

The case, filed by the Southern Environmental Law Center, or SELC, on behalf of the Tennessee Clean Water Network and Tennessee Scenic Rivers Association, alleged that for more than 50 years, toxic coal ash pollution has been leaking from the plant into the Cumberland River, a source of drinking water for over one million Tennessee residents. According to SELC, a review of groundwater monitoring wells showed that scattered areas across the site contain arsenic at levels well above U.S. Environmental Protection Agency restrictions.

SELC announced its intention to sue the TVA in November 2014, but enforcement of the Tennessee Water Quality Control Act by the state attorney general and Tennessee Department of Environment and Conservation effectively blocked SELC's suit. However, the group filed a federal suit in April 2015 over issues it said were not addressed by the state's lawsuit.

In January 2016, the TVA and the state agreed to a temporary injunction in the state's case, after which the TVA immediately asked a federal court to dismiss the federal suit. Crenshaw dismissed part of SELC's suit in September 2016 because it overlapped with the state's case but did not dismiss the suit entirely because that would place a bar on the "well-recognized role of citizen suits in supplementing government authority under the [Clean Water Act]."

Crenshaw has now ruled that closing the coal ash pit "is the only adequate resolution to an untenable situation that has gone on for far too long."

"It is difficult to imagine why anyone would choose to build an unlined ash waste pond in karst terrain immediately adjacent to a river," Crenshaw said. But he acknowledged that technical knowledge and environmental concerns may have developed since the TVA first decided how to store coal ash at Gallatin, which he said is "one reason the CWA has a statute of limitations."

However, Crenshaw maintained that the consequences of the TVA's 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," he asserted, adding that it is the TVA's responsibility to correct the problem. The court did not assess penalties, due to the significant costs the TVA will likely face remediating the sites.

"This is a huge victory for the people of Tennessee and for all those fighting to ensure that we have clean water in our state and in our country," SELC Senior Attorney Beth Alexander said in a statement. "Like at Kingston, it was unfortunately necessary to take TVA to court to force it to take responsibility for its coal ash pollution. The good news is that TVA will be required to do the right thing again, this time at Gallatin."

TVA spokesperson Scott Fiedler said the utility "is reviewing the order to determine our next steps," including whether to appeal the court's ruling.

"It is important to note, again, that there has been no environmental harm or adverse human health impacts shown to be connected with coal ash storage at Gallatin," Fiedler said in an email. "TVA remains committed to protecting the environment as we work to eliminate wet storage of coal combustion residuals at fossil plants and convert our current CCR operations to dry storage at Gallatin and across our system."