Coal ash cleanup order goes before federal appeals court

An attorney for the Tennessee Valley Authority Thursday described a judge’s coal ash cleanup order as “wholly disproportionate to the scant evidence of harm” as a case that has drawn wide interest from states and business groups went before a federal appeals court.

In his legal arguments before a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati, an attorney for environmental groups that won at the lower court level said a reversal would “disrupt” how the Clean Water Act has been administered for decades. Environmental activists claim TVA violated the Clean Water Act by storing coal ash in unlined storage ponds near a TVA power plant in Tennessee.

More than 20 states joined in submitting briefs to the appeals court, as did the U.S. Chamber of Commerce, national coal industry interests and more than a dozen other groups. Most of the states sided with TVA in urging the appeals court to overturn last year’s cleanup order.

The judge ordered coal ash to be excavated and removed at Gallatin, about 40 miles from Nashville. He cited Clean Water Act violations of pollutants leaking into the Cumberland River but said there was scant evidence of harm done by the pollution so far.

Coal ash is a byproduct of burning coal for power, and has heavy metals such as arsenic, mercury and lead in it.

David Ayliffe, an attorney representing TVA, pointed to the judge’s “abuse of discretion” in urging the appeals court to overturn the order.

“And here, the extreme remedy of excavating over 14 million cubic yards of coal ash is wholly disproportionate to the scant evidence of harm that the (federal) district court found,” he told the court based on an audio recording. “But I do want to be very clear: TVA is not saying for a minute that there are not groundwater issues to address at Gallatin, there’s not work for TVA to do. Far from it.”

The federal utility has said it’s taking steps to follow the cleanup requirement, even as it pushes to get the order struck down.

Frank Holleman, an attorney for the environmental groups, said the ash pond complex operates under permit as a wastewater treatment facility.

“That is the heart of the point sources that the Clean Water Act wanted to control and to deal with,” told the appeals court.

A reversal on appeal would have repercussions on how the Clean Water Act is applied, Holleman said.

“If the court were to rule that the Clean Water Act does not apply when pollutants move from a point source into a waterway … simply because the facility is not on the river’s edge, that would disrupt the way the Clean Water Act has been administered for decades,” he said.

States supporting a reversal argued in a brief submitted earlier this year that the order at TVA’s Gallatin Fossil Plant would broadly expand federal oversight into groundwater pollution historically regulated by states. More citizen lawsuits would almost certainly be filed and would require coal ash cleanups elsewhere, costing utility ratepayers tens of billions of dollars, attorneys for the states wrote.

TVA initially said the Gallatin cleanup project would cost $2 billion. Newer estimates factoring in an onsite landfill ranged below $1 billion. The utility’s timeline has said it would take 24 years to move the ash to an onsite landfill.

The utility contends that capping the waste where it sits would be less expensive and avoid a possibly larger spill from moving the ash. But capping the ash wasn’t an option under the court order.

The judge’s ruling required TVA to excavate the unlined ponds used to store the ash and put it in a safe, lined landfill.