A federal appellate panel has overturned an order that would have required the nation's largest public utility to unearth and remove a massive amount of coal ash at one of its Tennessee power plants.
In a 2-1 decision, the 6th U.S. Circuit Court of Appeals wrote that leaks from unlined coal ash pits through groundwater into the Cumberland River are a "major environmental problem" at the Tennessee Valley Authority's Gallatin Fossil Plant. But, the ruling continued, the Clean Water Act isn't the "proper legal tool of correction" to address it.
The cleanup would have involved digging up and moving almost 14 million cubic yards of coal ash, a byproduct of burning coal for power that contains heavy metals like arsenic, mercury and lead. Though Monday's decision was a defeat for environmental interests, state regulators still have a lawsuit pending over similar environmental complaints at Gallatin.
The environmental investigation by state regulators will help TVA determine how to dispose of the ash, said utility spokesman William Scott Gureck.
The case drew plenty of outside interest over how the Clean Water Act was applied. Eighteen largely Republican states, the U.S. Chamber of Commerce, national coal industry interests and more than a dozen other groups weighed in against the lower court's cleanup ruling, saying it would have wide-reaching, expensive consequences, particularly for ratepayers.
Democratic attorneys general for four other states warned that overturning the order would threaten the Clean Water Act and give polluters incentive to skirt regulation by rerouting discharges to groundwater.
In his dissent to Monday's decision, Judge Eric Clay said the ruling lets polluters escape Clean Water Act liability by moving their drainage pipes a few feet from the riverbank. He wrote that two other circuit courts have ruled in the opposite manner.
DJ Gerken, managing attorney of the Southern Environmental Law Center, said his group is determining next steps with its client, Tennessee Scenic Rivers Association, which is one of the groups that sued TVA.
"In a week where neighboring states around the Southeast have dealt with catastrophic floods that inundated coal ash lagoons, it's a reminder that storing highly toxic coal ash in unlined, leaking pits next to our rivers and lakes is irresponsible," Gerkin said. "It's past time for utilities to move their coal ash to dry, lined storage away from our waterways."
TVA initially said the Gallatin cleanup project would cost $2 billion, though later estimates factoring in an onsite landfill ranged below $1 billion. The federal utility's timeline has said it would take 24 years to move the ash to an onsite landfill, an estimate the state and environmental groups questioned.
In August 2017, a district judge ordered the 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.
Gureck said Monday's ruling provides clarity on the Clean Water Act and confirms the utility isn't violating it. He said TVA will correct any impacts that state regulators identify at TVA's Tennessee ash ponds, in addition to its plans to convert from wet to dry coal ash storage at all of its remaining coal plants by 2022.
Previously, the utility has contended 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.
TVA estimates it could take 20 years of 50 to 100 truckloads a day to remove all of the coal residues at Gallatin.
By comparison, TVA said it would cost about $230 million and may be safer and more environmentally friendly to keep the ash where it is and cover it with a cap.
TVA won an EPA environmental reclamation award for its cleanup and capping of coal ash at its Kingston Fossil Plant following the 2008 spillage of more than 5 million cubic yards of sludge into the Emory and Clinch rivers and destroyed nearby homes.
"We have proposed the same cap and closure at Gallatin," said TVA President Bill Johnson said earlier this year. "We think it is just as safe to cap the coal ash where it is and we think there are equal or greater chances of problems when you move the ash."