A federal judge has ordered the Tennessee Valley Authority (TVA) to move coal ash waste currently located in pond disposal areas to a lined impoundment area, handing a win to environmental groups that brought the Clean Water Act (CWA) suit. U.S. District Judge Waverly D. Crenshaw Jr. directed the entry of judgment to the Tennessee Clean Water Network (TCWN) and the Tennessee Scenic Rivers Association (TSRA) on various claims in the suit alleging groundwater contamination from an ash pond complex where coal ash is disposed of. The judge said the TVA has to fully excavate the coal ash waste in the complex and move it to a lined site that offers reasonable assurances that it won’t discharge waste into U.S. waters.
Judge Crenshaw said it was difficult to imagine why anybody would choose to build an unlined ash waste pond in “karst terrain” – or landscape that is porous – immediately next to a river. The judge wrote:
The futility of second-guessing such decades-old actions is one reason the CWA has a statute of limitations. 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.
The environmental groups sued TVA in April 2015 over alleged discharges of toxic metals and other pollutants into the Cumberland River from the Gallatin fossil plant, a 976-megawatt coal-fired power plant near Gallatin, Tennessee.
The groups claimed TVA has known for years that coal ash waste leaks into the river and groundwater through unpermitted seeps and sinkholes beneath the ponds, violating the agency’s National Pollutant Discharge Elimination System permit and the CWA. “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,” Beth Alexander, a lawyer for the TSRA, said in a statement.
In September Judge Crenshaw had dismissed some of the claims that he thought were duplicative of a Tennessee civil enforcement action, but found that other claims were sufficiently different and allowed them to go forward. Renee Hoyos, TCWN’s executive director, said in a statement:
This is a great victory for the TCWN members and the general public that live in and around the Gallatin Plant. The court found that the coal ash ponds in the area are a significant health hazard and something has to be done to protect the ground and surface water near the plant.
The Tennessee Scenic Rivers Association is represented by Elizabeth A. Alexander and Jonathan M. Gendzier of the Southern Environmental Law Center. The Tennessee Clean Water Network is represented by its own Shelby R.B. Ward. The case is Tennessee Clean Water Network et al. v. Tennessee Valley Authority, (case number 3:15-cv-00424) in the U.S. District Court for the Middle District of Tennessee. If you want more information on Clean Water Act claims, contact Rhon Jones in our Toxic Torts Section at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com.
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