Tennessee Clean Water Network v. Tennessee Valley Authority, No. 3:15-cv-00424 (M.D. Tenn. August 4, 2017)

Tennessee Clean Water Network v. Tennessee Valley Authority, No. 3:15-cv-00424 (M.D. Tenn. August 4, 2017)
U.S. District Court for the Middle District of Tennessee

For decades, the Tennessee Valley Authority (TVA) disposed coal ash from a coal-fired power plant near Gallatin, Tennessee into unlined ponds adjacent to the Cumberland River.  Two local organizations filed a case alleging violations of the Clean Water Act.    

Among the findings of law included in the court’s decision, it held that the Clean Water Act prohibits the discharge of pollutants into navigable waters via groundwater.  Paras. 361-363. Moreover, a plaintiff need not “be able [to] map every inch of that path with perfect precision.”  Para. 364.  The court also found that TVA’s system of ash ponds, as well as an abandoned waste disposal site, all qualified as “point sources” as defined by the Clean Water Act capable of conveying pollution to the nearby Cumberland River. 

Although TVA held a Clean Water Act discharge permit, the court found that it did not authorize any discharges of pollution from an abandoned waste disposal site (identified in the opinion as the “Non-Registered Site”).  Para. 424.  With regard to the ash pond complex, which was constructed over a very porous landscape (karst), the court concluded that pollutants traveled to the Cumberland River via leaks in the ponds (Para. 462) and that the discharge permit did not anticipate any discharges beyond those that would occur with minor seepage from the dikes surrounding the ponds.  Para. 466.

The court gave considerable analysis to possible remedies.  It declined to assess monetary penalties against TVA and instead weighed options to achieve closure and remediation of the ash disposal ponds.  The court ultimately concluded:

“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. The Court, however, understands that it is now the beneficiary of technical knowledge and environmental concerns that may not have informed the decision-making of half a century ago. 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. TVA, as the entity responsible for the ponds, must be the entity to do so.”  Para. 503.

The court directed TVA to provide a timeline and itemized description of the coal ash removal process and submit periodic updates to the court throughout the cleanup process.  Para. 501.

As of October 2017, TVA filed an appeal to the U.S. Court of Appeals for the Sixth Circuit.  The appeal is pending.