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Tennessee Clean Water Network v. Tennessee Valley Authority

ELR Citation: 46 ELR 20150
Nos. 3:15-cv-00424, (M.D. Tenn., 09/09/2016) (Crenshaw Jr., J.)

A district court held that environmental groups may go forward with some, but not all, of their CWA claims against TVA concerning coal ash contamination stemming from a coal-fired power plant near Gallatin, Tennessee. The groups allege that TVA knew that the ash ponds' construction and the area's topography would be expected to, and in fact have, resulted in contamination of the Cumberland River, both through direct leaks from the ponds to the river and through leaks into groundwater that is hydrologically connected to it. In addition, the groups claimed that the presence of "seeps" through which wastewater passed directly from the ponds into the Cumberland River represents not only unlawful discharges of pollutants, but also potential signs that the structural integrity of the ponds might become compromised. Many of the groups' claims are already being pursued in a state enforcement action against TVA and must therefore be dismissed. But some of the groups' allegations do not overlap: unlawful use of a particular creek as a wastewater treatment facility; unauthorized discharge to the Cumberland River from a non-registered site; and discharge to the Cumberland River from the ash pond complex through hydrologic connections that cannot be characterized solely and exclusively as seeps alone. These allegations are conceptually distinct and, contrary to TVA's argument, not the "same issues" being pursued by the state. Accordingly, the court held that any claim premised on one of those three classes of allegation—whether based on statute, rule, or permit—survives the diligent prosecution bar.