Tennessee's first Clean Water Act lawsuit over coal ash now in hands of Nashville judge
NASHVILLE, Tenn.--The post-trial findings of fact briefs in a civil lawsuit filed against the Tennessee Valley Authority over alleged contamination are now in the hands of a Nashville judge.
The Tennessee Clean Water Network (TCWN), Tennessee Scenic Rivers Association (TSRA), and the TVA filed the briefs to Federal Judge Waverly Crenshaw on Friday. The plaintiffs, represented by the Southern Environmental Law Center, claim TVA's Gallatin Fossil Plant's coal ash pits have leaked 27 billions gallons of coal ash into the Cumberland River for the past 60 years, causing pollution and even some drinking water wells to be contaminated.
The TVA has contended the leaks were surface maintenance issues which were repaired.
Both sides argued their cases to Judge Waverly Crenshaw during a trial in early February. Judge Crenshaw then requested the proposed finding of facts briefs -- which is a summary of believed facts to support each side's argument-- to be filed by April 14th. While no timetable has been set forth, it is now in Judge Crenshaw's hands to make a ruling on Tennessee's first Clean Water Act lawsuit over coal ash to ever reach trial.
The briefs offer a detailed account of the arguments both sides are presenting.
Below are bullet points found in the briefs. See the full copies at the bottom of this article.
-TVA burns approximately four million tons of coal at the Gallatin Fossil Plant. There are roughly 10 million cubic yards of coal ash in the ground at the plant.
-A Tennessee Department of Environment and Conservation geologist testified the Ash Pond Complex site's groundwater would flow towards the Cumberland River.
-From 1956-1970, the TVA "sluiced" (rinsed) coal ash mixed with water at a western part of the site. Some ash settled out of the slurry to the bottom of the western part of the site, releasing wastewater into the Cumberland River.
-In 1970, a coal ash disposal and wastewater treatment facility (Ash Pond Complex) started operation. The complex has a series of unlined ash ponds and stilling ponds separated from the Cumberland River by earthen dikes.
-The Ash Pond Complex is made up of Ash Ponds A and E, and Stilling Ponds B,C, and D. Ash pond A is 248 acres. Ash Pond E is 167 acres.
-A TVA hydrology expert concluded some amount of ash is saturated with groundwater. Based on the conclusion the SELC states coal ash contamination from the site is transported by groundwater to the Cumberland River.
-TVA hydrology expert presented data at a January 2017 meeting that groundwater monitoring wells, at various depths both onside and offsite had elevated levels of arsenic, cadmium, and boron. The brief states "This data confirms the coal ash is contaminating the groundwater at Gallatin."
-TVA expert testified ash is not in contact with groundwater, adding the groundwater is "beneath the bottom of the ash."
-Western Kentucky Professor of Hydrogeology testified if site was not covered in coal ash waste, rainfall would be expected to run through the ground and sink into bedrock.
-There is no impermeable bottom lining or solid bedrock layer beneath ash ponds. The bottom of the ash ponds "more resembles a colander than a liner."
-A 1987 internal TVA Groundwater Report stated holes in the bedrock below the ash could exist and concluded the "water table is believed to be within the waste pond."
TVA Proposed Finding of Fact
-Witnesses for the plaintiffs failed to prove a link between contaminated ground waters and navigable waters. States witnesses also failed to trace pollutants from their source to surface waters.
-Six status reports show "substantial work has ben and continues to be performed" under an agreement between the TVA and TDEC.
-The Clean Water Act --which the suti claims TVA is violating-- does not apply to groundwater, even if hydrologically connected to surface waters. Two federal circuit courts of appeal have concluded the CWA does not apply to groundwater.
-The 1952 land acquisition map of the land during a TVA survey did not show drainage features.
-TVA does not dispute there is coal ash in the Cumberland River since there were "occasional slides and frequent erosion, which caused ash to escape" in the late 1960s.
-The plaintiff's expert witness testimony in 2014 and 2015 of samples tested did not provide evidence of how long the materials found in the samples had been in the river or how it got there.
-TVA did not dispute leaks from the Ash Pond Complex in the 70s, but repaired those past leaks in the late 70's. Therefore, those leaks are not relevant since they are "wholly past."
-Since 1976, discharges from the plant have been covered by permits issued by the Environmental Protection Agency (EPA), and TDEC, and are not beyond reason.
-Plaintiffs did not identify "the location of a single sinkhole or fissure through which there is an actual, ongoing discharge of coal ash waste," and failed to provide a link between pollutants found and their source.
-The source where the plaintiffs allege seepage is not considered a "point source" covered under the Clean Water Act.
-TVA is in compliance with permit provisions and permits issued, adding civil penalties are inappropriate becuase application permits clearly disclose potential for discharges at issue.
-To close the Ash Pond Complex would cost between $200 million for closure in place and $2.37 billion for excavation and off-site disposal.
-Publicly-available data does not show harm to the Cumberland River.