Conservation Groups Post Trial Findings of Fact and Conclusions of Law

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION
TENNESSEE CLEAN WATER NETWORK )

and TENNESSEE SCENIC RIVERS )
ASSOCIATION, ) Case No. 3:15-cv-00424
)
Plaintiffs, ) Judge Crenshaw
)
v. ) Magistrate Judge Holmes
)
TENNESSEE VALLEY AUTHORITY, )
)
Defendant. )
)
______________________________________________________________________________
CONSERVATION GROUPS
POST-TRIAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 1 of 78 PageID #: 9893

TABLE OF CONTENTS
I. THE GALLATIN FOSSIL PLANT IS A COAL-FIRED POWER PLANT

SITUATED ON ODOMS BEND PENINSULA AND IS SURROUNDED BY
OLD HICKORY LAKE ...............................................................................................................1
II. FOR DECADES, TVA HAS SLUICED COAL ASH WASTEWATER TO
UNLINED PONDS SEPARATED FROM OLD HICKORY LAKE BY LEAKING
EARTHEN DAMS. .......................................................................................................................3
A. The Non-Registered Site ......................................................................................................3
B. The Ash Pond Complex .......................................................................................................4
III. THERE IS A HYDROLOGIC CONNECTION BETWEEN ASH AND
GROUNDWATER AT THE NON-REGISTERED SITE AND THE ASH POND
COMPLEX. ...................................................................................................................................7
A. Coal Ash is Buried Below the Water Table and Within the Groundwater at
the Non-Registered Site and is Flowing through the Groundwater into Old
Hickory Lake. .....................................................................................................................7
B. Coal Ash is Buried Below the Water Table and Within the Groundwater at
the Ash Pond Complex and is Flowing through the Groundwater to Old
Hickory Lake. .....................................................................................................................8
C. The Karst Topography at the Ash Pond Complex has Created Conduits
Between the Ash Pond Complex and the Groundwater. ..................................................11
IV. COAL ASH CONTAMINATION ................................................................................................20
A. Testing at the Non-Registered Site Establishes Coal Ash Contamination of
Groundwater and Surface Water ......................................................................................21
B. Testing at the Ash Pond Complex Establishes Coal Ash Contamination of
Groundwater and Surface Water. .....................................................................................24
C. Isotopic Fingerprinting Establishes that Contamination in Groundwater and
Surface Water at the NRS and the Ash Pond Complex is from Coal Ash and
is Not Naturally-Occurring. ..............................................................................................26
D. Contamination of Groundwater in Private Drinking Water Wells ....................................28
E. Sediment Contamination at the Non- Registered Site and the Ash Pond
Complex. ..........................................................................................................................29
F. Impacts of Contamination to the River ..............................................................................30
V. POTENTIAL ALTERNATIVES FOR REMEDIATION.............................................................31
ii

VI. CONSERVATION GROUPS STANDING ..............................................................................37
VII. THE CLEAN WATER ACT .......................................................................................................37
VIII. VIOLATIONS OF TVAS NPDES PERMIT FOR THE ASH POND COMPLEX ...................38
A. TVA is in Violation of the Removed Substances Provision of the Permit. .......................39
B. TVA is in Violation of the Sanitary Sewer Overflow Provision of its Permit. .................42
C. TVA is in Violation of the Proper Operation and Maintenance of its Permit. ..................43
D. Discharges from Seeps at the Ash Pond Complex are Violations of the
Permit. ..............................................................................................................................44
IX. UNPERMITTED POINT SOURCE DISCHARGES OF POLLUTION ARE
VIOLATIONS OF THE CLEAN WATER ACT .........................................................................46
A. The Non Registered Site and Ash Pond Complex Are Point Sources. ..............................47
B. Discharges to Surface Water through Hydrologically Connected
Groundwater Are Subject to the Clean Water Act. ..........................................................48
X. CONTINUING VIOLATIONS. ....................................................................................................52
XI. DILIGENT PROSECUTION. .......................................................................................................55
XII. REMEDIES. ..................................................................................................................................57
A. The Removed Substances Provision of the Permit Requires that TVA
Remove Its Coal Ash from the Groundwater. ..................................................................58
B. The Clean Water Act Requires TVA to Stop Its Ongoing Unpermitted
Discharges and Remedy Its past Violations. ....................................................................61
C. Civil Penalties are Appropriate. .........................................................................................67
iii

TABLE OF AUTHORITIES
Cases
Amoco Prod. Co. v. Village of Gambell,

A.K., 480 U.S. 531 (1987) ......................................................................................................... 64
Am. Canoe Assn v. City of Louisa Water & Sewer Commn, 389 F.3d 536(6th Cir. 2004) ........ 37
Assn Concerned Over Resources and Nature, Inc. v. Tenn. Aluminum Processors, Inc.,
No. 1:10-00084, 2011 WL 1357690 (M.D. Tenn. Apr. 11, 2011) ............................................ 49
Brewer v. Ravan, 680 F. Supp. 1176 (M.D. Tenn. 1988) ............................................................. 52
Burlington N.R.R. v. Bair, 957 F.2d 599 (8th Cir. 1992) .............................................................. 64
Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d 868 (9th Cir.2013) ................. 55
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) ..................................... 49
Consolidation Coal Co. v. Costle, 604 F.2d 239 (4th Cir. 1979) ................................................. 47
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)........................................................... 64
Gingras v. Lloyd, 740 F.2d 210 (2nd Cir.1984)............................................................................ 68
Goldfarb v. Mayor of Baltimore, 791 F.3d 500 (4th Cir. 2015) ................................................... 54
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc
484 U.S. 49 (1987). ............................................................................................................ passim
Harpeth River Watershed Assoc. v. City of Franklin,
No. 3:14-1743, 2016 WL 827584 (M.D. Tenn. March 3, 2016)............................................... 49
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) .......................................................................... 68
In the Matter of: 539 Alaska Placer Miners, More or Less, & 415 Alaska Placer Miners, More or
Less, Permittees,
No. 1085-06-14-402C, 1990 WL 324284 (E.P.A. Mar. 26, 1990). .................................... 40, 41
Metro. Pittsburgh Crusade for Voters v. City of Pittsburgh,
964 F.2d 244 (3rd Cir.1992)..................................................................................................... 68
N. Cal. Riverwatch v. Mercer Fraser Co.,
No. C-04-4620, 2005 WL 2122052 (N.D. Cal. 1 Sept. 2005) ................................................ 49
N.C. Wildlife Fedn v. Woodbury,
No. 87-584-Civ-5, 1989 WL 106517 (E.D.N.C. Apr. 25, 1989) .............................................. 53
Ohio Valley Environmental Coalition, Inc. v. Hernshaw Partners, LLC,
984 F.Supp.2d 589 (S.D.W.Va. 2013) ................................................................................ 47, 53
Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., LLC,
No. CV 2:13-5006, 2015 WL 5972430 (S.D.W. Va. Oct. 14, 2015) ........................................ 64
Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co.,
808 F. Supp. 2d 868 (S.D.W.Va. 2011) .................................................................................... 62
Ohio Valley Envtl. Coal., Inc. v. Apogee Coal Co., LLC,
555 F. Supp. 2d 640 (S.D.W.Va. 2008) .............................................................................. 61, 65
Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999) .............................................................................. 69
S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) ........................................... 45
iv

Sierra Club v. Abston Constr. Co., 620 F.2d 41 (5th Cir. 1980) .................................................. 47
Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015) ................................................. 37
Sierra Club v. Va. Elec. & Power Co., 145 F. Supp. 3d 601 (E.D. Va. 2015) ............................. 60
Tenn. Clean Water Network v. TVA, 206 F. Supp. 3d 1280 (M.D. Tenn. 2016) .......................... 45
U.S. Pub. Interest Research Grp. v. Atl. Salmon of Maine, LLC,
339 F.3d 23 (1st Cir. 2003) ....................................................................................................... 63
U.S. v. New Portland Meadows, Inc.,
No. 00-507-AS, 2002 WL 31180956 (D. Or. Sept. 9, 2002) .................................................... 41
U.S. v. Oakland Cannabis Buyers Coop., 532 U.S. 483 (2001) .................................................. 62
Umatilla Waterquality Protective Assn, Inc. v. Smith Frozen Foods, Inc.,
962 F. Supp. 1312 (D. Or. 1997) ............................................................................................... 53
United States v. Alpha Nat. Res., Inc.
No. CIV.A. 2:14-11609, 2014 6686690 (S.D.W.Va. Nov. 26, 2014)....................................... 47
United States v. Bd. of Cty. Commrs of Hamilton Cty, Ohio,
No. 1:02 cv 00107, 2005 WL 2033708 (S.D. Ohio Aug. 23, 2005) ......................................... 55
United States v. Ciampitti, 615 F. Supp. 116 (D.N.J. 1984) ......................................................... 63
United States v. Cumberland Farms, 826 F.2d 1151 (1st Cir. 1987) ........................................... 63
United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) .......................................................... 63, 65
United States v. Deaton, 332 F.3d 698 (4th Cir. 2003) .......................................................... 63, 65
United States v. Diamond Beach Dev. Corp., 772 F.2d 897 (3d Cir. 1985) ................................. 63
United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979) .......................................... 47
United States v. Mead, 533 U.S. 218 (2001) ................................................................................ 49
United States v. Outboard Marine Corp., 549 F. Supp. 1036 (N.D. Ill. 1982) ............................ 63
United States v. Smith, 149 F.3d 1172 (4th Cir. 1998) ................................................................. 63
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ........................................................... 57, 62
Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990) ....................................................... 53
Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC,
141 F. Supp. 3d 428 (M.D.N.C. 2015) ............................................................................... passim
Statutes
33 U.S.C. 1251(a) ...................................................................................................................... 37

33 U.S.C. 1362(5) ...................................................................................................................... 46
33 U.S.C. 1362(6) ...................................................................................................................... 46
33 U.S.C. 1362 (12)(A).............................................................................................................. 37
33 U.S.C. 1362(14) .................................................................................................................... 46
33 U.S.C. 1365 ........................................................................................................................... 43
33 U.S.C. 1365(a) ................................................................................................... 37, 57, 60, 66,
33 U.S.C. 1365(d) ................................................................................................................ 57, 68
33 U.S.C. 1365(f)(6) ............................................................................................................ 37, 46
33 U.S.C. 1319(d) .......................................................................................................... 57, 60, 67

33 U.S.C. 1331(a) ...................................................................................................................... 46
33 U.S.C. 1342(a) ........................................................................................................... 46, 58, 59
Tenn. Code Ann. 68-31-101 ...................................................................................................... 39
Tenn. Code Ann. 68-46-101 ...................................................................................................... 39
Other Authorities
NPDES Permit I.A.c. ..................................................................................................... 39, 41, 42

NPDES Permit II.A.4.a. ....................................................................................................... 43, 69
NPDES Permit II.C.3.b. ....................................................................................................... 42, 69
Rules
74 Fed. Reg. 626 (Jan. 2009) .................................................................................................. 57, 67

55 Fed. Reg. 47,990 (Nov. 16, 1990)............................................................................................ 49
56 Fed. Reg. 64,876 (Dec. 12, 1991) ............................................................................................ 48
66 Fed. Reg. 2,960 (Jan. 12, 2001) ............................................................................................... 48
Regulations
40 C.F.R Part 423 Appendix A ..................................................................................................... 46

40 C.F.R. 19.2 ............................................................................................................................ 68
40 C.F.R. 19.4 ............................................................................................................................ 68
40 C.F.R. 122.2 ......................................................................................................................... 46
40 C.F.R. 122.41(a).................................................................................................................... 37
40 C.F.R. 401.15 ........................................................................................................................ 46
40 C.F.R. 440.148(c).................................................................................................................. 41
vi

This is a Clean Water Act case brought by two environmental conservation groups,
Tennessee Clean Water Network and Tennessee Scenic Rivers Association, against the
Tennessee Valley Authority for unpermitted discharges of coal ash contamination from TVAs
Gallatin Fossil Plant. A trial of this matter was held from January 30, 2017 to February 5, 2017.
The Conservation Groups respectfully submit these Proposed Findings of Fact and Conclusions
of Law.
FINDINGS OF FACT
I. THE GALLATIN FOSSIL PLANT IS A COAL-FIRED POWER PLANT

SITUATED ON ODOMS BEND PENINSULA AND IS SURROUNDED BY OLD
HICKORY LAKE.
1. TVA owns and operates the Gallatin Fossil Plant (Gallatin Plant). (Dkt. 125 at
PageID 4740, 6).
2. The Gallatin Plant is a four-unit coal-fired power plant located in Sumner County,
Tennessee, about five miles south of the city of Gallatin on Odoms Bend Peninsula, which is
formed by the Old Hickory Lake portion of the Cumberland River between River Miles 242.5
and 246. (J. Ex. 278 at 1).
3. The Gallatin Plant commenced operation in 1956. (J. Ex. 278 at 3).
4. The Gallatin Plants generation of electricity through the burning of coal produces
coal ash waste, generally referred to as coal combustion residuals or CCRs. (J. Ex. 278 at 4).
5. In a typical year, TVA burns approximately four million tons of coal at the
Gallatin Plant. (Dkt.1, PageID 11, at 49; Dkt. 16, PageID 540 at 49).
6. There are roughly 10 million cubic yards of coal ash in the ground at the Gallatin
Fossil Plant. (Tr. v. 4, 129:22-24).

7. Old Hickory Lake is a reservoir created by the construction of the Old Hickory
Lock and Dam on the Cumberland River. (J. Ex. 278, Page ID 8325, at 5).
8. Old Hickory Lake and the shoreline are open to the public and are heavily used
for recreation, such as swimming, boating, and fishing, including along the TVA property
adjacent to both the Ash Pond Complex and the Non-Registered Site (NRS). (Tr. v. 2, 85:13-
17).
9. The City of Gallatin public drinking water facility is roughly a mile and a half
downstream from the Plant. (Tr. v. 2, 98:7-12).
10. Odoms Bend Peninsula and the Gallatin Steam Plant are hydrologically bounded
on three sides by Old Hickory Lake/the Cumberland River. (Tr. v. 1, 34:14-16).
11. TVAs own historic documents recognize that the Gallatin Steam Plant is
hydrologically bounded on three sides by the Cumberland River. The general direction of
ground-water flow is expected to be from the active ash pond to the river. (J. Ex. 44 at 35).
12. TVAs hydrology expert, Elizabeth Perry, testified that groundwater under the
peninsula flows radially toward Old Hickory Lake and the Cumberland River. (Tr. v. 4 at 66:24
68:25)
13. Ms. Perry testified that groundwater discharge from the NRS to the river is 1,745
cubic feet per day. (Tr. v. 4, 54:13-16; 71:5-7).
14. TVAs contractor, Arcadis, found that groundwater flow is from the NRS to the
Cumberland River. (J. Ex. 59 at iv).
15. Britton Dotson, a TDEC geologist, testified that the Ash Pond Complex represents
a water-table high, and that groundwater would flow radially away from that high, toward the
Cumberland River. (Tr. v. 3, 25:16-26:1).

16. This groundwater flow pattern is also depicted on various historic maps, which
show groundwater flowing in an outward radial pattern from the top of the groundwater mound
toward the lower elevation of the water table, which is the elevation of the Cumberland River.
(Tr. v. 1, 41:16-24; J. Ex. 59 at TVGF_004759; J. Ex. 52 at 12; J. Ex. 44 at 34).
II. FOR DECADES, TVA HAS SLUICED COAL ASH WASTEWATER TO

UNLINED PONDS SEPARATED FROM OLD HICKORY LAKE BY LEAKING
EARTHEN DAMS.
A. The Non-Registered Site.
17. From 1956 until 1970, the Gallatin Plant sluiced coal ash mixed with water to a
65-acre surface impoundment on the western edge of the plant site, which is referred to as the
Non-Registered Site or NRS. (J. Ex. 278, Page ID 8325, at 7).
18. As a means of treating the ash-water slurry that was sluiced to the NRS, TVA
allowed some ash to settle out of the slurry to the bottom of the NRS before releasing the
wastewater into the Cumberland River. (J. Ex. 59 at ii; Tr. v. 3, 78:20-79:20).
19. TVA stopped sluicing coal ash waste into the NRS in 1970. (J. Ex. 59 at ii) (Coal
combustion byproducts were sluiced and treated in a series of ash ponds located on the western
edge of the site until the ponds reached capacity and were closed in 1970).
20. TVA constructed the NRS with unlined perimeter containment dikes made of
earth and ash. (J. Ex. 278 at 11).
21. The NRS covers approximately sixty-five acres and contains an unknown volume
of coal ash waste. (J. Ex. 278 at 7).
22. Coal ash is reportedly up to thirty-two feet thick in the NRS. (J. Ex. 59 at 4).
23. Groundwater moving laterally into the NRS continues to re-saturate the wastes in
the NRS. (Tr. v. 1, 170:18-24).

24. TVA constructed the NRS in a low-lying area with documented sinkholes. (Tr. v.
1, 169:20-24).
25. In some areas of the NRS, coal ash is buried below the normal pool elevation of
the Cumberland River, 445 feet above mean sea level. (Tr. v. 1, 170:3-7).
26. There is no National Pollution Discharge Elimination System (NPDES) permit
for discharges of pollution from the Non-Registered Site. (Tr. v. 2, 57:17-18).
27. Seeps have been detected along the shore of the NRS via visual inspection,
elevated conductivity, black sludge on the riverbed adjacent to the impoundment, and elevated
levels of contaminants in the surface water. (Tr. v. 2, 83:9-84:7).
28. Material from the river bed adjacent to the NRS was later confirmed through
microscopic analysis to be fly ash, bottom ash, and coal. (Tr. v. 2, 146:10-17).
29. The NRS is a discernable, confined, and discrete container engineered and
designed to receive and store coal ash waste, and was used for this purpose at the Gallatin Plant
from about 1956 to 1970.
B. The Ash Pond Complex
30. In 1970, TVA began operating a coal ash disposal and wastewater treatment
facility north of the NRS referred to as the Ash Pond Complex. (J. Ex. 278 at 12-14).
31. To address its coal ash waste production, TVA currently mixes coal ash with water
and sluices the wastewater mixture to the Ash Pond Complex, a series of unlined coal ash ponds
and stilling ponds that are separated from the Cumberland River by earthen dikes. (J. Ex. 278 at
10, 12).

32. TVA annually sluices approximately 185,000 tons of fly ash and 45,000 tons of
bottom ash into Ash Pond A, for a total of approximately 230,000 tons of ash. (Dkt. 1 at 101;
Dkt. 16 at 101).
33. The entire Ash Pond Complex is unlined. (J. Ex. 278 at 10).
34. The Ash Pond Complex currently consists of Ash Ponds A and E, and Stilling
Ponds B, C, and D. (J. Ex. 278 at 14; J. Ex. 279).
35. TVA currently sluices the coal ash wastewater from the Gallatin Plant to Ash
Pond A, where some ash settles to the bottom before the wastewater is sent to Stilling Pond B,
then to Stilling Pond C, and finally to Stilling Pond D. (Dkt. 16 at 102).
36. TVA discharges treated wastewater from Stilling Pond D into the Cumberland
River through Outfall 001. (J. Ex. 278 at 16).
37. Ash Pond A covers 248 acres. (Dkt 1 at 101; Dkt. 16 at 101).
38. Historically, TVA sluiced wastewater into Ash Pond E, but TVA is in the process
of attempting to dewater Ash Pond E and is no longer sluicing waste to it. (J. Ex. 278 at 15).
39. Ash Pond E covers 167 acres. (Dkt. 1 at 103; Dkt. 16 at 103).
40. TVA has a NPDES Permit for the treatment of wastewater at the Ash Pond
Complex that was issued July 1, 2012 and expires May 31, 2017. (Tr. v. 2, 37:3-22; J. Ex. 102).
41. TVA was previously operating under a 2005 NPDES Permit for operation of the
Ash Pond Complex, which was administratively extended until the current Permit was issued.
(Tr. v. 2, 38:9-17; J. Ex. 136).
42. Both the 2005 and 2012 NPDES Permits identify Outfall 001 as the only location
for the discharge of coal ash wastewater to the Cumberland River. (J. Ex. 102 at 1; Tr. v. 2,
40:21-24; 47:25-48:4).

43. The manager of water-based systems unit in Tennessee Department of
Environment and Conservations (TDEC) Division of Water Resources was Vojin Janjic at the
time the current Gallatin NPDES Permit was issued. (Tr. v. 2, 31:4-7; 36:16-24).
44. According to Mr. Janjic, under the Permit, the Ash Pond Complex is designed to
treat the wastewater by allowing the solids and pollutants to settle on the bottom of the ponds.
(Tr. v. 2, 39:9-40:2).
45. Ash is buried at the Ash Pond Complex as low as 440 feet MSL (Mean Sea Level)
in some places, thus below the normal 445 MSL pool elevation of Old Hickory Lake, and
therefore ash is below the water table, within the groundwater, and is in constant contact with the
groundwater. (Tr. v. 1, 170:4-7; 63:3-7).
46. Conductivity is an indication of mineral or pollutant content of the water, and
commonly used as a reliable scientific method to identify potential areas of contamination and
discharge. (Tr. v. 2, 83:23-84:12).
47. Flowing seeps have been identified along the perimeter of the Ash Pond Complex
by visual inspection, elevated conductivity, and elevated levels of coal ash contaminants, as set
forth below. (Tr. v. 2 at 83:9-84:7).
48. The Ash Pond Complex is a discernible, confined, and discrete container
engineered and designed to receive and store coal ash waste.

III. THERE IS A HYDROLOGIC CONNECTION BETWEEN ASH AND
GROUNDWATER AT THE NON-REGISTERED SITE AND THE ASH POND
COMPLEX.
A. Coal Ash is Buried Below the Water Table and Within the Groundwater at
the Non-Registered Site and is Flowing through the Groundwater into Old
Hickory Lake.
49. Mr. Mark Quarles, an expert geologist testifying on behalf of Conservation
Groups, prepared a conceptual geologic, hydrogeologic, and waste management cross-sectional
model for the NRS. (Tr. v. 1, 127:5-17; J. Ex. 142).
50. The NRS conceptual model was based on 1930 and 1952 topographic maps and
ground elevations before construction of the NRS. (Tr. v. 1, 127:5-11; J. Ex. 68, 69).
51. It demonstrates the elevation of the water table, that ash is below the water table,
and that saturated in groundwater at the NRS. (Tr. v. 1, 130:21-25; J. Ex. 142).
52. TVAs consulting firm, ARCADIS, conducted groundwater modeling to assess the
ecological and human risks posed by the NRS. The ARCADIS model was based on the
concentrations of constituents of concern that would theoretically reach the Cumberland River
through groundwater. (Tr. v. 1, 158:12-17; J. Ex. 59).1
53. ARCADIS predicted concentrations of contaminants from the NRS that would
reach the Cumberland River through groundwater transport, and concluded that groundwater
would transport those constituents at varying depths into the river. (Tr. v. 1, 158:10-161:2).
54. Based on the ARCADIS report, Mr. Quarles concluded that the contamination
might remain undetected by bypassing monitoring wells at the NRS. (Tr. v. 1,161:2-162:2).
1
A constituent is a chemical component of the coal combustion product that may be present in groundwater and
can be analyzed by a lab. J. Ex. 125 (TVAs OIG Report, June 21, 2011) n. i.

55. ARCADIS concluded that contaminated groundwater discharges from the NRS
into the Cumberland River along the groundwater transition zone of approximately 4,600 feet in
length along the NRS shoreline. (Tr. v. 1, 163:9-14).
56. As set forth above, TVAs expert Elizabeth Perry has concluded that groundwater
flows from the NRS to the river at up to 9,490 cubic feet per day, and that some amount of ash is
saturated with groundwater. (Tr. v. 4, 55:1-56:3)
57. Based on this evidence, the Court finds that coal ash is submerged in groundwater
at the NRS, and that coal ash contamination is transported through the groundwater at the NRS
into the Cumberland River and that the groundwater at the NRS is hydrologically connected to
the river.
B. Coal Ash is Buried Below the Water Table and Within the Groundwater at
the Ash Pond Complex and is Flowing through the Groundwater to Old
Hickory Lake.
58. On January 18, 2017, a four-and-a-half hour meeting was held at the Gallatin
Plant between employees of TDEC, TVA employees, and employees of TVAs contractor,
AECOM. (Tr. v. 4 at 156:21 157:24).
59. The purpose of the meeting was to discuss recent testing and monitoring
conducted at the site. (Tr. v. 4 at 158:2-7).
60. AECOM employees in attendance included TVAs experts, Gabe Lang, Walter
Kutschke, and Elizabeth Perry. (Tr. v. 4 at 157:11-17).
61. James Clark, the chief geologist for TDECs Division of Solid Waste
Management, attended on behalf of TDEC. (Tr. v. 4, 155:24-156:2).
62. Mr. Clark has been involved in the evaluation of the Gallatin coal ash
impoundments since February 2016. (Tr. v. 4, 156:18-157:24).

63. Despite the length of the meeting, the fact that it was two weeks before trial, and
the fact that he was one of the presenters, Dr. Kutschke testified on February 2, 2017 on behalf of
TVA, I dont recall the specific meeting we are talking aboutI mean, that was a while ago.
(Tr. v. 4, 21:12; 21:22-23; 158:8-11).
64. Although Dr. Kutschke gave sworn testimony that he was unable to recall the
January 18, 2017 meeting generally, he was able to recall that he did not present any information
at the meeting he testified instead that Elizabeth Perry and other geologists presented water table
elevation data, cross-sections, and groundwater data. (Tr. v. 4, 22:3-9; 23:4-5).
65. Mr. Clark testified that Ms. Perry and Dr. Kutschke both presented data regarding
water table elevations, known as potentiometric surface data, that showed that the water table
elevation is above the bottom of the ash at Ash Pond E, Ash Pond A, and at the stilling ponds.
(Tr. v. 4, 161:23-162:1).
66. In Mr. Clark's words, The data showed that thethe water table is in the ash,
and therefore the ash is below the water table and is saturated with groundwater at the Ash Pond
Complex. (Tr. v. 4, 161:5-6).
67. This data is consistent with a report prepared by AECOM in March 2015, prior to
this litigation, in which it assessed the feasibility of removing the ash from a pond, installing a
liner in the bottom of the pond, and returning the ash back to the pond. (Tr. v. 3, 127:21-128:6;
J. Ex. 113 at 3).
68. In the March 2015 report, AECOM admits that a portion of the ash at Ash Pond E
is up to 10 feet below the elevation of the Cumberland River. (Tr. v. 3, 128:19-129:4; J. Ex. 113
at 7).

69. It also states that, if the pond is hydraulically connected to the Cumberland
River, dewatering below river level would be virtually impossible (you cannot pump the river
down)[.] (Tr. v. 128:25-129:5; J. Ex. 113 at 7).
70. The data showing that ash is within the water table at the Ash Pond Complex is
consistent with the testimony of Conservation Groups expert witness, Chris Groves, who
testified that groundwater is below the water table, (Tr. v. 1, 63:7-8), and the conclusions and
observations made by TVA engineers in reports that were not prepared for litigation purposes, as
set forth more fully below. (J. Ex. 44 at 35); (Tr. v. 1, 34:8-24) (Water-table elevations are
probably within the ash disposal pond.).
71. It is also consistent with data Ms. Perry presented at the January 18, 2017 meeting
showing that multiple groundwater monitoring wells, at various depths, all over the site and
offsite had elevated levels of arsenic, cadmium, and boron, among other contaminants, and that
some of the wells exceeded Maximum Contaminant Levels. (Tr. v. 4, 158:18-160:15). This data
confirms that the coal ash is contaminating the groundwater at Gallatin.
72. There were several other inconsistencies between Mr. Clarks testimony about
what TVAs contractors told him and what the TVA witnesses testified to about the location of
ash relative to the groundwater.
73. Strikingly, Ms. Perry, TVAs hydrology expert, Mr. Lang, TVAs engineering
expert, John Kammeyer, TVAs corporate representative in charge of coal ash, each testified that
the ash is not in contact with groundwater.
74. For example, Ms. Perry, the lead hydrogeologist studying the groundwater at
Gallatin, testified when asked, Where is the groundwater? that [t]he groundwater is
underneathin the Carters Limestone underneath the Ash Pond Complex. . . . It is beneath the
10

bottom of the ash, and that the depth between the bottom of the ash and the water-bearing
zones in the Carters ranges from 6 feet to more than 20 feet. (Tr. v. 4, 41:9-17).
75. These statements directly contradict Mr. Clarks testimony that Ms. Perry
presented potentiometric surface data at the January 18, 2017, that showed that the water table is
in the ash at the Ash Pond Complex. (Tr. v. 4, 161:5-6).
76. Likewise, when Mr. Lang was asked, It's your testimony here today that Ash
Pond E is not within the groundwater table? Mr. Lang responded, That's correct. (Tr. v. 3,
110:14-17).
77. Similarly, when asked if he was aware that the ash in Ash Pond E is submerged in
groundwater, Mr. Kammeyer testified No, thats not true. . . . No. No. In fact, just the opposite.
The data is that that we now have is demonstrating that its not in the groundwater. (Tr. v. 4,
148:18-24).
C. The Karst Topography at the Ash Pond Complex has Created Conduits
Between the Ash Pond Complex and the Groundwater.
78. Karst topography is defined as a terrain, generally underlain by limestone, in
which the topography is chiefly formed by the dissolving of rock, and characterized by closed
depressions or sinkholes, subterranean drainage, and caves. (J. Ex. 96 at viii).
79. Typical karst features are caves, sinkholes, and underground streams. (Tr. v. 1,
29:1-2).
80. An historical TVA map from September, 1984 shows a very large number of
sinkholes on the footprint of Odoms Bend Peninsula, indicated by black circles and ovals. (Tr. v.
1, 31:6-11; J. Ex. 51).
81. Diagonal lines or marks on the historical map also depict lineaments, or bedrock
fractures. (Tr. v. 1, 31:6-11; J. Ex. 51).
11

82. This map provides clear evidence that subsurface fractures in Odoms Bend
Peninsula are extensive. (Tr. v. 1, 31:20-21; J. Ex. 51).
83. Fractures and related conduits under the coal ash disposal areas transport coal ash
waste to the groundwater. (Tr. v. 1, 31:22-32:1; J. Ex. 51).
84. Different from sinkholes, fractures are continuous conduits that span the length
and width of the peninsula. TVA presented no evidence at trial that these fractures have been
repaired, and given how extensive they are, it would be nearly impossible to do so. (Tr. v. 1,
32:1-4; J. Ex. 51).
85. The Conservation Groups expert, Dr. Chris Groves,2 is a Professor of
Hydrogeology at Western Kentucky University and has more than 30 years of professional
experience studying landscape aquifer systems. He specializes in the study of karst regions
throughout the world, and, in particular, those in the area of the Gallatin Plant. (Tr. v. 1, 53:20-
54:2).
86. The spaces for water flow are typically larger in karst aquifers than in areas where
karst is not present, and in karst topography, the groundwater can travel long distances with little
or no filtration to diminish contamination, making groundwater in karst terrains readily
susceptible to contamination. (Tr. v. 1, 29:13-23).
87. Dr. Groves testified that, if the Gallatin site was not covered by coal ash waste,
one would expect to see rainfall landing on the ground and quickly sinking underground into the
highly porous bedrock. (Tr. v. 1, 30:9-14).
2
The Parties have stipulated that each expert identified by the Parties is qualified to render expert testimony. (J. Ex.
277 at 3).
12

88. Borings drilled in the vicinity of the Ash Pond Complex established that there are
extensive voids underground in and near the Ash Pond Complex, and several of the borings
demonstrated significant groundwater flow through conduits in the bedrock. (Tr. v. 1, 32:5-14).
89. At the Ash Pond Complex, there is no impermeable bottom lining or solid
bedrock layer below the ash ponds that currently keeps coal ash waste from migrating down into
the karst aquifer. (Tr. v. 1, 65:2-8).
90. There is also no continuous clay layer creating an impermeable liner. Ash sits on
top of bare rock in some places at the Ash Pond Complex. (Tr. v. 1, 65:18-66:3).
91. In fact, because of the sinkholes, lineaments, voids, potential caves, and sinking
creeks, the bottom of the Ash Pond Complex more resembles a colander than a liner. (Tr. v. 1,
33:5-10).
92. Wastewater containing coal ash of in the Ash Pond Complex flows through
unrepaired drainage features and conduits, and eventually to the Cumberland River. (Tr. v. 1,
33:5-10).
93. Reports generated outside of the context of litigation by TVA engineers
concerning the groundwater conditions at Gallatin were all consistent with Dr. Groves
conclusions that the topography of the site allows ash to be in contact with groundwater and that
the groundwater flows to the Cumberland River.
94. Over decades, before TVA engaged experts for purposes of this litigation, TVAs
in-house engineers consistently found that karst at Odoms Bend Peninsula allowed for the flow
of contamination into the groundwater. (Tr. v. 1, 34:8-24).
95. A 1981 report titled Groundwater Quality Monitoring in the Tennessee Valley
Region concluded that [c]areful consideration should be given to the location of waste disposal
13

sites in karst terrain and that [i]n karst terrain, the migration of contamination can be rapid and
may be undetected by the monitor well system. (J. Ex. 96 at 32-33).
96. TVAs internal 1982 Groundwater Report states, Precipitation and surface water
enter the underground system by infiltration either through sinkholes or vertical joints in the
limestone that are subject to weathering and solutional processes. Ground water may also flow
through horizontal sheet-like openings that occur along the bedding planes between rock strata.
Gallatin Steam Plant is hydrologically bounded on three sides by the Cumberland River. The
general direction of ground-water flow is expected to be from the active ash pond to the river.
Bedrock joints and the topography probably control the actual flow of ground water. Water-table
elevations are probably within the ash disposal pond. (J. Ex. 44 at 35).
97. The same report concludes that [b]ecause of the karst terrain in the Gallatin
Steam Plant area, ground water can become rapidly polluted. (J. Ex. 44 at 36).
98. TVAs internal 1987 Groundwater Report states that, holes or solution cavities in
the bedrock can exist below TVA waste disposal facilities which could result in the flow of
impounded water in a waste disposal facility directly to groundwater with little attenuation, and
that . (J. Ex. 45 at 11).
99. The 1987 report also explains that, [w]ater of low pH dissolves carbonate rock
and forms solution cavities through which large quantities of water can flow. Flow through these
solution cavities more closely resembles flow through a pipe than flow through a porous media
such as characterizes conventional groundwater flow. (J. Ex. 45 at 16).
100. The report concludes that the [w]ater table is believed to be within the waste
pond. (J. Ex. 45 at 26-28).
14

101. In 1989, TVA recognized that the groundwater flow could be contaminating
domestic wells to the north of the Ash Pond Complex, stating that, one should consider that
domestic wells P1 and P3 are at risk of contamination from the ash pond. (J. Ex. 46 at 13).
102. This statement was reiterated in a 1992 TVA Groundwater Report that stated,
Based on the distribution of boron, the areal extent of groundwater impacts includes the entire
Gallatin reservation and two offsite domestic wells, which are less the 0.25 mile [sic] north of the
340-acre ash pond. (J. Ex. 47 at vi).
103. In a 2008 internal report, TVA recognized that in karst terrain, most of the
groundwater resides in and flows through fractures, bedding planes, small solution openings, and
large open conduits. Water enters the groundwater system as dispersed recharge from rainfall that
infiltrates over wide areas or as concentrated recharge from sinkholes and losing streams that
infiltrates to localized parts of the groundwater system (J. Ex. 49 at 67).
104. The 2008 TVA report also noted that, [g]roundwater in karst terrains is readily
susceptible to contamination, as the water can travel long distances through conduits with no
chance for the natural filtering processes of soil or bacterial action to diminish the
contamination. (J. Ex. 49 at 68).
105. TVAs historical memos also document the fact that from, 1970-1978, all of the
coal ash waste that TVA sluiced into the Ash Pond Complexsome 27 billion gallons of coal
ash waste drained down through the underground conduits into the Cumberland River. (Tr. v.
1, 35:25-36:12).
106. TVA admitted that leakage through sinkholes and the extensive network of
solution cavities underlying the pond occurred at such a rate that no pond overflow occurred
through the NPDES permitted discharge structure. (J. Ex. 46 at 4).
15

107. During those years, TVA documented that the leakage rate was equal to the
inflow rate of the ash sluice water into the pond. (J. Ex. 41 at TVGF_008091).
108. The sluice water and storm water did not raise the pond level, even though TVA
continued to sluice wastewater to the pond at a rate of 6,000 gallons per minute. (J. Ex. 43 at 1).
109. Dr. Kutschke admitted that the Ash Pond Complex was leaking and that the water
level did not rise despite the fact that wastewater was sluiced at the rate of 6,000 gallons per
minute, and that 27 billion gallons of sluice water water mixed with ash was lost over 8
years. (Tr. v. 4, 9:1-10:5).
110. During that time, the ponds water level generally fluctuated with the reservoirs
level. (J. Ex. 88 at 1).
111. The fact that the pond failed to hold water and the level of the ash pond
fluctuated with the level of Old Hickory Lake is unequivocal proof of a direct hydrologic
connection between the Ash Pond Complex and Old Hickory Lake through one or more
subsurface conduits. (Tr. v. 1, 36:13-22).
112. TVA studies indicated that there were between 59 and 111 sinkholes that were
leaking. (Tr. v. 1, 37:17-21).
113. TVA plugged some of the sinkholes, which caused the water level to rise to the
outfall. (J. Ex. 47 at 5) (Following the plugging of several sinkholes in the northwest end of the
pond in 1978, the leakage rate was reduced and a point source discharge was established at the
pond outfall.).
114. However, as Dr. Groves testified, this does not mean that leakage through the
karst drainage system underlying the Ash Pond Complex was eliminated; it was simply reduced
enough that water in the pond rose to the level of the outfall. (Tr. v. 1, 49:10-21).
16

115. TVAs expert, Dr. Kutschke, admitted that if there were currently leaks in the Ash
Pond Complex, the water would nevertheless likewise rise to the level of the outfall as long as
the total water volume entering the Ash Pond Complex is greater than the volume leaking from
the bottom. (Tr. v. 4, 11:19-25).
116. He also admitted that it is not necessary for the bottom of the Ash Pond Complex
to be completely sealed in order for water to still discharge from the outfall. (Tr. v. 4, 12:6-9).
117. Furthermore, TVA noted that even if the sinkholes were all plugged, others might
begin to leak. (J. Ex. 41 at TVGF_008091).
118. In several TVA documents, TVA admitted that, in order to stop the leaking of
waste, the entire Ash Pond Complex would need to be treated or lined. (Tr. v. 1, 39:16-18; J.
Ex. 40 at 1) (Numerous points of suspected leakage were identified in this area and would
probably require treatment of the entire area to prevent leakage).
119. In 2009, TVAs retained engineering firm, Stantec, completed a report titled
Phase 1 Facility Assessment reviewing the coal ash impoundments and disposal facilities at a
majority of TVAs fossil plants, including Gallatin. (J. Ex. 146).
120. Stantec evaluated each pond in the Ash Pond Complex, and for each one noted
that[k]arst bedrock and sinkhole activity is present plant-wide and is a concern and
recommended that [l]ong term strategies relative to plant-wide karst subsurface conditions
should be developed, including consideration to installing lining systems beneath all ponds or
converting to dry disposal operation where appropriate. (J. Ex. 146 at TVGF_018828-29;
TVGF_018835; TVGF_018841-42).
17

121. Sinkholes in or near the Ash Pond Complex have posed a continuous problem, as
evidenced by the fact that TVA was required to mitigate ten karst areas when it expanded Pond E
in 2010. (Tr. v. 1, 69:8-18).
122. Sinkholes have been identified repeatedly at or near the Ash Pond Complex in
1979 (J. Ex. 39), 1990 (J. Ex. 146 at TVGF_018825) (Circular dike removed and sinkhole
repaired in 1990 reportedly by excavating and capping), 1991 (J. Ex. 53), 2005 (J. Ex. 121),
2007 (J. Ex. 225; J. Ex. 226), and 2010 (J. Ex. 94).
123. Most recently, TDEC identified a likely sinkhole in 2016. (Tr. v. 1, 38:14-17).
124. TDEC geologist, Britton Dotson, testified that he has recently observed a number
of features to both the north and south of the Ash Pond Complex indicative of a karst setting,
including apparent cave openings, vertical features, joints that have been solution enlarged,
sinking streams, and springs. (Tr. v. 3, 8:7-16).
125. Mr. Dotson was given a tour of the Ash Pond Complex facility on November 8,
2016, during which he observed a feature that he was concerned might be karst. (Tr. v. 3, 15:8-
25).
126. He also testified that he has observed indications of solutionally developed
bedrock within Ash Pond E, which is typical of a karst process. (Tr. v. 3, 8:1-6).
127. While Mr. Dotson has seen multiple types of karst features both to the north and
south of the Ash Pond Complex, it is difficult to observe karst features within the Ash Pond
Complex itself because it is covered with ash. (Tr. v. 3, 11:17-20).
128. A recently-conducted karst inventory prepared by AECOM on the property
confirmed the existence of dozens of unrepaired karst features in Ash Ponds A and E. (Tr. v. 4,
17:10-12; 18:15-21).
18

129. Dr. Kutschke, who is in charge of the karst inventory currently being conducted at
Gallatin, admitted in his testimony on behalf of TVA that unrepaired karst features are capable of
conduit flow and could still be leaking. (Tr. v. 4, 20:2-23).
130. Dr. Kutschkes testimony regarding the existence or even potential existence of
karst features contradicts TVA reports prepared outside of the context of litigation, the testimony
of TDEC geologists, and the 2016 karst inventory, which Dr. Kutschke admitted showed at least
several dozen unrepaired karst features. (Tr. v. 4, 18:19-21).
131. Specifically, when the Court asked Dr. Kutschke if he had identified
circumstances that would allow sinkholes to be created at Gallatin, he responded, Currently,
no. (Tr. v. 3, 193:21-24).
132. Ms. Perrys testimony also contradicts TVAs earlier internal reports. She testified
that the available geologic and water-level evidence tends to establish the absence of non-
seepage flows (such as through sinkholes and fissures) from the Ash Pond Complex to the
underlying groundwater. (Tr. v. 4, 42:17-20).
133. Given that Dr. Kutschkes and Ms. Perrys testimonies each contradict TDECs
testimony, TVAs prior admissions in its historical reports, and the facts gathered from the karst
inventory, the Court will not accept the testimony as credible.
134. In light of the fact that groundwater flow on Odoms Bend Peninsula flows
toward the Cumberland River, the extent and nature of the karst topography at the site, the
existence of karst features in and around the Ash Pond Complex, the fact that in the past, TVA
has admitted that the ash is below the water table, and current potentiometric data from the Ash
Pond Complex that confirms the ashs location below the water table, the Court finds that the
Ash Pond Complex is hydrologically connected to the Cumberland River.
19

IV. COAL ASH CONTAMINATION
135. The contaminants most commonly found in coal ash-contaminated water are
chloride, sulfate, calcium, magnesium, manganese, boron, vanadium, arsenic, selenium,
strontium, and molybdenum. (Pl. Ex. 20 at 64).
136. Boron is a good indicator of coal ash contamination. (Tr. v. 2, 134:5-6) Because
boron is at high concentrations in the coal and the fly ash leachates, is at low concentrations in
ambient groundwater, and is minimally affected by geochemical reactions, boron is considered as
a good indicator. (J. Ex. 47 at vi).
137. Contamination can also be determined by comparing the level of a contaminant at
a testing site to the level of that same contaminant in a reference, or background sample collected
where you would not expect contamination. (Tr. v. 2, 87:10-17).
138. Uncontaminated water has boron concentrations of about 50 parts per billion. (Tr.
v. 2, 150:10-14).
139. Conservation Groups used the average of publicly available state data from two
water quality monitoring stations 19.9 miles upstream as background for surface water testing,
and groundwater monitoring wells 22 and 25 as background samples for groundwater testing.
140. Maximum Contaminant Levels (MCLs) are drinking water standards set by the
State and the United States Environmental Protection Agency (EPA), which represent
maximum allowable levels of pollutants in water which may be used for human consumption.
(Tr. v. 2, 86:13-18).
141. Surface water and groundwater samples were collected by Conservation Groups
water quality expert, Barry Sulkin. (Tr. v. 2, 74:11-18).
142. Mr. Sulkin was an employee of TDEC for 14 years. (Pl. Ex. 19 at 11).
20

143. Mr. Sulkins samples were collected in accordance with standard and customary
state and EPA protocol for investigating leaking waste or unpermitted discharges and in
accordance with laboratory requirements. (Tr. v. 2, 77:19-79:24).
144. A chart showing the results of groundwater testing and compared with applicable
maximum contaminant level, or MCL and results from wells TVA identified as background, was
admitted as Plaintiffs Exhibit 3.
145. TVA did not dispute the accuracy of the data reported in Plaintiffs Exhibit 3.
146. Conservation Groups presented surface water sampling results obtained by
Conservation Groups experts in Plaintiffs Exhibit 1. 3
147. TVA did not dispute any of the elevated levels of contamination or the
exceedances of the MCLs reflected in Plaintiffs Exhibit 1. (Tr. v. 2, 93:19-94:22; 107:16-18).
148. Moreover, Mr. Clark, the chief geologist for TDECs Division of Solid Waste
Management, also testified that AECOM had recently collected data showing that multiple
groundwater monitoring wells at various depths all over the site exceeded MCLs of arsenic,
cadmium, and boron, among other contaminants. These exceedances were in Ponds A and E,
Stilling Ponds, and offsite. (Tr. v. 4, 158:18-160:15).
A. Testing at the Non-Registered Site Establishes Coal Ash Contamination of

Groundwater and Surface Water
149. Since 2000, TVA has conducted groundwater sampling at the NRS as part of its
closure plan. (Tr. v. 2, 108:14-24).
3
Conservation Groups submitted Plaintiffs Exhibits 1 and 3 as revised versions of the same chart previously
submitted as a joint exhibit. Plaintiffs Exhibits 1 and 3 were admitted into evidence on the first day of the trial (Tr.
v. 1, 3-4; 13:19-20). The exhibits, however, were not on the exhibit list prepared by the court and filed on February
6, 2017 as Dkt. 232.
21

150. The NRS monitoring wells are designated by numbers 19R, 20, 22, 26 and 27.
(Tr. v. 2, 108:14-18).
151. Conservation Groups consider monitoring wells 22 and 25 to be good background
wells. (Pl. Ex. 20 at 56).
152. By 2002, TVAs groundwater monitoring at the NRS indicated the presence of
beryllium, cadmium, and cobalt at or exceeding EPAs MCLs. (Tr. v. 2, 108:21-24).
153. In 2011, TVAs Office of Inspector General issued a report regarding the
groundwater contamination at Gallatin, finding that samples collected in 2008 showed
exceedances of MCLs and/or groundwater protection standards for beryllium, cadmium, and
nickel at the NRS. (J. Ex. 125 at 9).
154. As a result of these exceedances, TDEC placed the Gallatin Plant in Phase III
Assessment, which required TVA to develop a Groundwater Quality Assessment Plan and
required TDEC to issue a Notice of Violation, which TDEC declined to do. (J. Ex. 125 at 7).
155. Sampling of groundwater monitoring wells at the NRS was conducted
simultaneously by TVA and Conservation Groups in July 2015. Levels of contaminants in wells
19R, 20, 26, and 27 were higher than background wells 22 and 25, including elevated levels of
aluminum, arsenic, barium, boron, cobalt, copper, iron, lead, lithium, magnesium, manganese,
molybdenum, nickel, strontium, sulfate, thallium, and zinc. (Tr. v. 2, 109:13-25).
156. Gabe Lang, TVAs expert geologist, admitted that the current groundwater
monitoring at the NRS shows ongoing contamination. (Tr. v. 3 112:1-7).
157. Ms. Perry testified that the NRS has historically had seeps in its dikes and that
groundwater flows from the NRS to the River at a rate of 9,490 cubic feet per day. (Tr. v. 4, 55:1-
5; 55:17-20).
22

158. In January of 2015, Mr. Sulkin identified an area of reddish discolored water in a
cove near the NRS indicative of leaking. (Tr. v. 2, 104:18-25).
159. Based on the red water in the cove, Mr. Sulkin decided to sample the surface
water in that area on February 6, 2015. Id.
160. Mr. Sulkin measured elevated levels of conductivity adjacent to the NRS during
the February 2015 sampling trip. (Tr. v. 2, 104:25-105:19).
161. Water samples were taken adjacent to the NRS at locations designated by
Conservation Groups as NRS 1-4. (Tr. v. 105:20-24).
162. There are background Cumberland River data for comparison for all parameters
except the following: Boron, dissolved solids, hexavalent chromium, lithium, mercury, silicon,
strontium, and sulfur. (Tr. v. 2 94:19-22).
163. Lead exceeded the domestic water supply criteria in a sample taken at NRS-4 on
February 6, 2015, and background levels were exceeded for aluminum, arsenic, barium,
beryllium, calcium, chromium, cobalt, copper, iron, lead, manganese, nickel, sodium, sulfate,
vanadium, and zinc. (Tr. v. 2, 106:9-24).
164. Samples taken by Mr. Sulkin from the Non-Registered Site at NRS-4 on August 3,
2016, exceeded background levels for aluminum, antimony, calcium, cobalt, copper, iron,
magnesium, manganese, nickel, selenium, sulfate, and zinc. (Tr. v. 2, 107:3-7).
165. Also on August 3, 2016, a sample collected from a location at NRS-6 yielded
measurements above background values for aluminum, antimony, arsenic, barium, calcium,
copper, iron, manganese, vanadium, and zinc. (Tr. v. 2, 107:7-11).
166. These elevated levels of contaminants are indicative of continuing leakage from
the Non-Registered Site directly into the Cumberland River. (Tr. v. 2, 107:12-15).
23

B. Testing at the Ash Pond Complex Establishes Coal Ash Contamination of
Groundwater and Surface Water.
167. The results from joint sampling between Conservation Groups and TVA of Ash
Pond Complex groundwater monitoring wells 17, 23, 24, and 25 in July and September 2015
showed elevated levels of mercury, chromium, nitrate/nitrite, and total phosphorous. (Tr. v. 2,
100:15-24).
168. TVA also conducted groundwater monitoring and prepared reports of the results
from the Ash Pond Complex dated July 2011, January 2012, July 2012, January 2013, July 2013,
and January 2014. (Tr. v. 2, 99:14-21; Plaintiffs Ex. 2).
169. TVA admitted that data from monitoring well 17 on the western edge of the Ash
Pond Complex showed elevated levels of cadmium, iron, manganese, and dissolved solids. (Tr. v.
2, 100:7-9).
170. TVA admitted that data from monitoring well 23 on the northwestern edge of the
Ash Pond Complex showed elevated levels of aluminum, iron, manganese, and dissolved solids.
(Tr. v. 2, 100:10-12).
171. TVA admitted that TVA data from monitoring well 24 north of the Ash Pond
Complex showed elevated levels of barium, dissolved solids, nickel, and sulfate. (Tr. v. 2,
100:12-14).
172. Mr. Sulkin also sampled surface water discharges on May 7, 2014, from the east
bank of the Ash Pond Complex, identified as APC-1 and APC-2. (Tr. v. 2, 90:8-20).
173. Joint Exhibit 11 showed a photograph of flowing wastewater discharge from
APC-1, sampled on May 7, 2014. (Tr. v. 2, 91:6-11).
24

174. The sample collected by Mr. Sulkin at APC-1 yielded elevated contamination
levels compared to background levels for chloride, cobalt, iron, manganese, arsenic, sulfate, and
vanadium. (Tr. v. 2, 95:5-10).
175. On August 25, 2014, Mr. Sulkin sampled a discharge referred to as APC-2, also
on the west bank of the APC near APC-1. (Tr. v. 2, 91:12-25).
176. The samples collected at APC-2 on August 25, 2014 yielded levels elevated above
background of aluminum, arsenic, barium, cadmium, calcium, chloride, chromium, cobalt, iron,
lead, magnesium, manganese, nickel, selenium, sodium, sulfate, thallium, vanadium, and zinc.
(Tr. v. 2, 95:18-22).
177. Arsenic, barium, cadmium, lead, nickel, selenium, and thallium exceeded the
domestic water supply criteria at APC-2 on August 25, 2014. (Tr. v. 2, 95:23-25).
178. Arsenic was present at APC-2 at thirteen times the value of domestic water supply
criteria on August 25, 2014. (Tr. v. 2, 96:1-4).
179. Based on high conductivity readings and a cloudy appearance in the water Mr.
Sulkin also took samples slightly further from shore that day, referred to as APC-3. (Tr. v. 2,
91:12-25).
180. The sample collected on August 25, 2014 at APC-3, yielded aluminum, arsenic,
barium, cadmium, chloride, chromium, cobalt, copper, iron, lead, magnesium, manganese,
molybdenum, sodium, sulfate, and zinc above background levels. (Tr. v. 2, 96:5-10).
181. TVA admitted that the area near APC-1 and 2 had been leaking for years, that
TVA had been monitoring the discharges since the 1980s, and that the discharge was 10 feet wide
at one point. (Tr. v. 2, 92:23-93:2).
25

182. Nevertheless, TVA did not take any steps to repair the discharge area until January
2015, after Conservation Groups issued their 60-day notice. (Tr. v. 2, 92:3-7).
183. TVA has not conducted any studies of its repair to determine whether the repair
stopped the discharge flow, and Mr. Lang admitted that the repair TVA conducted did not stop
the flow of wastes from the discharges. (Tr. v. 3, 126:1-3; 14-17).
184. The area from which these discharges originate is the natural, historical drainage
outlet of Sinking Creek. (Tr. v. 2,90:11-20).
185. The photograph taken before TVA placed fill material over the discharge indicates
that the drainage was more than a mere wet spot on the side of an impoundment, but was a
flowing, fast-moving conduit. (J. Ex. 11).
C. Isotopic Fingerprinting Establishes that Contamination in Groundwater and

Surface Water at the NRS and the Ash Pond Complex is from Coal Ash and is
not Naturally-Occurring.
186. Dr. Avner Vengosh, a professor from Duke Universitys Nicholas School of the
Environment, testified on behalf of Conservation Groups that he undertook an academic, unpaid
effort to assess the scope of the impact of coal ash contamination and the possible sources of the
contamination. (Tr. v. 2, 132:24-133:14).
187. Water samples from Gallatin that were analyzed in Dr. Vengoshs lab at Duke
were collected by his graduate student under his supervision, and the lab strictly followed the
U.S. Geological Survey protocol. (Tr. v. 2, 140:10-25).
188. Dr. Vengosh explained that boron is a reliable indicator of the presence of coal ash
and that elevated levels of dissolved boron and certain boron isotope ratios can confirm the
presence of boron contamination from coal ash as distinguished from naturally-occurring boron.
(Tr. v.2, 134:5-16).
26

189. Dr. Vengosh testified that certain boron isotope levels are a positive fingerprint for
the presence of coal ash. (Tr. v. 2, 139:16-18).
190. Strontium isotope ratios can also be used to identify coal ash contamination. (Pl.
Ex. 20 at 30-31).
191. Using this reliable methodology, Dr. Vengosh evaluated surface water samples
taken adjacent to the NRS and the Ash Pond Complex, groundwater samples from monitoring
wells at the NRS and the Ash Pond Complex, and groundwater samples from one off-site
privately-owned drinking water well. Dr. Vengosh identified that the water in these samples all
exhibited elevated boron concentrations far above background levels and boron and strontium
isotopic ratios consistent with the isotopic ratios found in coal ash. (Tr. v. 2, 138:23-139:15).
192. Dr. Vengosh concluded that coal ash from seeps and groundwater conduits at
Gallatin has contaminated groundwater and surface water at Gallatin. (Tr. v. 2, 133:19-134:1).
193. With respect to groundwater samples, coal ash contaminants were present in
various groundwater samples above the background levels, including chloride, sulfate, calcium,
magnesium, manganese, vanadium, arsenic, selenium, and molybdenum (Pl. Ex. 20 at 64).
194. Specifically, TVA groundwater monitoring wells 19R 20, 26, 27 at the Non-
Registered Site and wells 17 and 23 at the Ash Pond Complex displayed the high boron
concentrations and low delta-B-11 values, indicative of coal ash contamination. (Pl. Ex. 20 at
69, 70, 74).
195. Dr. Vengosh concluded that the elevated concentrations of boron and the boron
isotope ratios in wells 19R, 20, 26 and 27 at the Non-Registered Site and in wells 17 and 23 at
the Ash Pond Complex are evidence of coal ash contamination. (Pl. Ex. 20 at 74).
27

196. Surface water samples were collected by Duke University on June 17, 2015, near
discharges from the impoundments on the perimeter of Pond E of the Ash Pond Complex,
designated as GT-2, GT-3, and GT-4, and discharges from the seeps along the perimeter of the
NRS, which was designated as GT-5. (J. Ex. 279).
197. The surface water samples identified as GT-3, GT-4, and GT-5 had high
concentrations of boron and low boron isotope ratios, providing clear evidence that the source of
the boron contamination was coal ash. (Pl. Ex. 20 at 45-47, 54).
D. Contamination of Groundwater in Private Drinking Water Wells
198. In 1988, when boron was first used as a groundwater quality parameter, TVA
conducted study of private wells in the area of the Gallatin Plant. The study found that ash pond
leachate has affected the groundwater enough to increase the boron concentrations at domestic
wells P2 and P3 from below 50 ug/l to about 200 ug/l. (J. Ex. 46 at 22).
199. In 2015, three private wells just north of the Plant tested positive for elevated
levels of boron and hexavalent chromium. (J. Ex. 110).
200. Recent testing by Dr. Vengoshs lab of groundwater from a private residential
drinking water well on Odoms Bend Road directly north of the stilling ponds yielded boron and
strontium isotope ratios that are consistent with the isotope chemistry of coal ash. (Tr. v. 2,
145:14-16).
201. Dr. Vengosh concluded that the coal ash contamination had migrated beyond the
areas underlying the coal ash ponds to these wells. (Tr. v. 2, 145:20-23).
202. Based on these findings and the wells proximity to the coal ash ponds at the
Gallatin Plant, the boron in the well water was not naturally-occurring but derived from
migration of coal ash pond water originating from the Gallatin Plant coal ash. Id.
28

203. The State of Tennessee has informed this well owner and one other on Odoms
Bend Road that tests conducted on August 4, 2015 confirmed the presence of boron above
normal levels and hexavalent chromium above EPA Risk Assessment levels (J. Ex. 110).
E. Sediment Contamination at the Non- Registered Site and the Ash Pond
Complex.
204. Black sludge adjacent to the impoundment at the NRS was tested and confirmed
through microscopic analysis to be fly ash, bottom ash, and coal. (Tr. v. 2, 83:9-22; Tr. v. 2,
146:10-17).
205. Joint Exhibit 21 is a photograph of the sludge. (J. Ex. 21).
206. Sediment from the bottom of the river in multiple locations adjacent to the NRS
was tested chemically in August 2014, February 2015, and August 2016. (J. Ex. 145).
207. Constituent levels were compared to samples taken at Bartons Creek, a creek to
the south of the Gallatin Plant that flows into Old Hickory Lake. Because of its location, Bartons
Creek would not have been impacted by the Gallatin Plant. (Tr. v.1, 148:20-149:20).
208. The sediment testing confirmed elevated levels of pollutants associated with coal
ash in the sediment, including: aluminum, arsenic, barium, boron, calcium, chromium, cobalt,
iron, lithium, manganese, selenium, strontium, chloride, sulfate, phosphate, calcium, magnesium,
and sulfur. (J. Ex. 145).
209. In every sample collected from TVAs shoreline along both the NRS and the Ash
Pond Complex, boron was detected at elevated levels. However, boron was not detected in a
reference sample taken. (Tr. v. 1, 151:25-152:5).
210. Sulfur concentrations from 13 of the 15 TVA shoreline samples, were up to 15
times higher than the reference sample. (Tr. v. 1, 153:2-3).
29

211. Arsenic concentrations from the TVA shoreline samples were higher in 11 of the
15 samples, and iron concentrations at the Gallatin Plant shoreline were up to 10 times higher
than the reference sample. (Tr. v. 1, 153:8-16).
212. One would not expect any solid coal combustion waste to be leaving Outfall 001
and flowing into the Cumberland River. Moreover, Outfall 001 is over one mile downstream
from the sample locations at the NRS. (Tr. v. 1, 156:2-25).
F. Impacts of Contamination to the River
213. Dr. Dennis Lemly, a retired scientist from the United States Fish and Wildlife
Service and the United States Forest Service and associate research professor at Wake Forest
University, testified as an expert in ecotoxicology on behalf of Conservation Groups. (Tr. v. 2,
168:1-7; 188:24-189:1).
214. Dr. Lemly testified that selenium can be toxic to fish and aquatic life because of
its propensity to bioaccumulate in fish tissue, to pass from parent fish to offspring and eggs, and
to cause fish to have deformed skeletal features, mouth features, and fins. (Tr. v. 2, 170:22-
171:24).
215. In addition to deformities, selenium toxicity can cause death and population
failure in fish. (Tr. v. 2, 171:25-172:2).
216. EPAs aquatic life ambient water quality criterion for selenium was recently
revised to be 1.5 micrograms per liter in standing waters like Old Hickory Lake. (Tr. v. 2,
169:12-170:10).
217. Surface water testing from discharges at the Gallatin plant found that selenium
levels were 75 parts per billion, 50 times the toxic value for aquatic life. (Tr. v. 2, 184:16-18).
30

218. Groundwater testing at the Gallatin Plant confirmed that selenium was present in
groundwater at 45.3 times the toxic level for fish and aquatic life. (Tr. v. 185:7-10).
219. Sediment testing at the Gallatin Plant confirmed concentrations up to 130 parts
per million, which is 65 times higher than the threshold concentration of 2 parts per million for
toxic bioaccumulation in aquatic life. (Tr. v. 2, 185:21-25).
220. Dr. Lemly concluded that selenium at the Gallatin Plant has the potential to cause
significant long-term poisoning of fish and aquatic life, and that there is a very high likelihood
based on this data that selenium toxicity is affecting fish in the Cumberland River at the Gallatin
Plant. (Tr. v. 2, 184:21-24; 187:17-23).
V. POTENTIAL ALTERNATIVES FOR REMEDIATION
221. In 2012, TVA proposed to TDEC that it close the Ash Pond Complex by capping
it in place. (Tr. v. 3, 109:19-25).
222. John Kammeyer, TVAs vice president of civil projects, CCR management, and
equipment support services, testified on behalf of TVA regarding TVAs determination that
closure in place was TVAs preferable remedy. (Tr. v. 4, 103:25-104:3).
223. Mr. Kammeyers group is responsible for project management, construction
management and engineering management associated with coal facilities as it pertains to coal
ash, including at the Gallatin Plant. (Tr. v. 4, 104:8-105:1).
224. Mr. Kammeyer testified that compliance with the federal coal ash rule is a
minimum federal standard, that states can have more stringent solid waste and water quality
requirements than the federal coal ash rule, and that TVA must also comply with the Clean
Water Acts prohibition on non-permitted discharges. (Tr. v. 4, 116:15-117:4).
225. Under the federal coal ash rule, whether closure in place is permissible depends
on whether the facility can meet the performance standards, taking into account site-specific
31

conditions, including groundwater elevations, the nature of the terrain, and the presence of karst.
(Tr. v. 3, 117:12-15; Tr. v. 4, 122:2-11).
226. One performance standard requires the facility to minimize, to the maximum
extent feasible, post-closure infiltration of liquids into the waste. (Tr. v. 3, 117:20-23).
227. Another performance standard under the federal coal ash rule requires the facility
to minimize releases of coal ash waste to groundwater or surface water. (Tr. v. 3, 117:24-118:1).
228. EPA has not approved TVAs decision to implement closure in place at any of its
sites, including Gallatin. (Tr. v. 4, 137:14-17).
229. In fact, on October 18, 2016, EPA sent a letter to TVA clarifying that the Lack of
Objection rating was predicated on the Tennessee Valley Authoritys (TVAs) commitment and
ability to comply with the Coal Combustion Residuals (CCR) Rule as well as state regulatory
and enforcement requirements. Therefore, the EPAs letters dated March 7, 2016 and June 21,
2016 did not approve or disapprove the closure-in-place of the ash impoundments. (Pl. Ex. 10)
230. Modeling conducted by ARCADIS indicates that closure in place confers minimal
benefits in terms of contamination. ARCADISs 2014 model was used to evaluate both current
conditions (uncapped) and post-closure conditions 30 years into the future (with flexible
membrane liner cap and soil cover over NRS # 831324.) (J. Ex. 59 at 23).
231. It found that Differences between scenarios and benefits from the cap are
minimal. (J. Ex. 59 at 23).
232. The ARCADIS report also found that, [s]imilar to the predicted-current sediment
porewater concentrations, cadmium, nickel, and zinc still exceed a hazard quotient of 1 and the
relatively unchanged modeling results suggest that installation of a cap on the NRS # 83-1324
32

would not yield a significant reduction in risk in the groundwater transition zone. (J. Ex. 59 at
20).
233. According to TVA, a determination on groundwater elevations would be required
to make a final determination as to the impacts of capping the waste in place. (Tr. v. 4, 137:25-
138).
234. TVA hired Gradient Corporation to prepare an Impact Assessment Report for
Evaluating Coal Combustion Residual Surface Impoundment Closure Options at the Gallatin
Fossil Plant in Tennessee, dated February 4, 2016. (J. Ex. 188).
235. At the time of his testimony, Mr. Kammeyer had not read the report, but he had
read the executive summary. (Tr. v. 4, 140:8-12).
236. Mr. Kammeyer was not aware of what assumptions the report made about the
level of coal ash at Gallatin as it relates to groundwater. (Tr. v. 4, 140:16-18).
237. Though TVA paid for the 111-page Gradient Report, Mr. Kammeyer testified that
the document is not usable, was premature, and will need to be updated once TVA knows where
the groundwater is at. (Tr. v. 4, 141:6-9).
238. Mr. Langs assumption that closure in place is appropriate was based on The
Evaluation of Groundwater Protectiveness of Potential Surface Impoundment Closure Options,
which is not site-specific to Gallatin, and does not assume the existence of any sinkhole activity
or karst. (Tr. v. 3, 112:8-113:19).
239. Despite his reliance on the Gradient Report, which was not site-specific and did
not take sinkholes or karst into account, Mr. Lang testified that any closure decision should be
made on a case-by-case basis and should be site-specfic. (Tr. v. 3, 113:15-19).
33

240. Construction of a cap over the wastes will not result in cleanup of already
contaminated groundwater beneath the wastes that will continue to flow into the Cumberland
River. Saturated wastes will remain in the groundwater for the foreseeable future. (Tr. v. 1,
173:10-15).
241. A cap also would not address infiltration of the impoundments by groundwater.
(Tr. v. 3, 121:12-18).
242. Ms. Perry used a HELP model to determine what impact a cap might have on the
containment of contamination at the Non-Registered Site, but she did not take into account any
lateral flow into the NRS. She testified that a cap would not reduce lateral flow. (Tr. v. 4, 71:2-
16).
243. Any groundwater monitoring network installed in conjunction with a cap would
not prevent releases of ash or pollutants to the groundwater through sinkhole formation. (Tr. v. 3,
120:12-19).
244. EPA has issued guidance on the performance standards contained in the federal
coal ash rule that Mr. Lang was not aware of at the time that he testified that capping and closing
in place was appropriate at Gallatin. (Tr. v. 3, 123:14-19).
245. The EPA guidance states that, for example, if a small corner unit is submerged in
the underlying aquifer, a facility might be able to meet the performance standard for closure with
waste in place for the majority of the unit by clean closing the submerged portion of the unit and
installing the necessary engineering measure to ensure the rest of the unit meets the performance
standards in 257.102. (Tr. v. 3, 123:14-125:25).
246. In this guidance, clean closure refers to closure by removal. (Tr. v. 3, 125:2-3).
34

247. Evidence was presented that other utilities are excavating coal ash impoundments.
For example, Duke Energy is excavating 30 percent of its coal ash. (Tr. v. 4, 125:22-126:3; Dkt.
233).
248. As Mr. Lang admitted, Duke Energy is excavating all of its coal ash
impoundments in South Carolina at its Robbins and W.S. Lee Plants, and in North Carolina at its
Ashville, Buck, and Cape Fear, Dan River, Riverbend, H.F. Lee, Weatherspoon, Cliffside Rogers,
and Sutton Plants. (Tr. v. 3, 107:4-108:14).
249. Mr. Lang also admitted that Georgia Power is excavating ash at 17 of its 29
impoundments. (Tr. v. 3, 108:15-18).
250. In South Carolina, utilities (including SCE&G and the state-owned utility, Santee
Cooper) are excavating all coal ash impoundments in South Carolina. (Tr. v. 3, 106:13-20; 128:9-
24).
251. While Mr. Kammeyer argued that the excavations occurring in other states were
different because the impoundments in those states were smaller, he provided no concrete
explanation for why that difference is material other than to say that the challenges are much
different. (Tr. v. 4, 130:3-11).
252. Mr. Kammeyer testified that TVA has current cost estimates for closure in place of
$230 million, and the estimate for closure by removal is approximately $2 billion. (Tr. v. 4,
113:20-23).
253. TVA presented no evidence to support its cost estimates for various closure
options, other than a single sheet of paper which reproduces that conclusion without breaking
down the costs. (Tr. v. 4, 117:15-21; J. Ex. 270).
35

254. Mr. Kammeyer testified that the cost estimates were supported by the data, but
he was not aware of any breakdown of the costs prepared by TVA or its contractors. TVA has not
produced that information to Conservation Groups. (Tr. v. 4, 117:25-118:4; 119:7-15).
255. Moreover, TVAs estimated costs were expressed in terms of present day value,
and were not reduced to net present value, and thus were inherently overestimated. (Tr. v. 4,
120:1-20).
256. Conservation Groups established that TVA had close to $10.6 billion in operating
revenue in 2016. (Tr. v. 4, 131:11-21).
257. Mr. Lang testified that a problem with excavation and removal is the volume of
ash and that you have to have someplace to put it. And it has to be into a lined facility. (Tr. v.
133:19-22).
258. Mr. Lang also noted that TVA had considered moving the ash to a location on site
and that there is a Murfreesboro landfill, and he did not explain why it would not be feasible to
use one of these alternatives, other than Murfreesboro is a distance away and would require a
lot of trucks on the road. (Tr. v. 3, 134:2-8, 14-15).
259. Mr. Lang did not say that it was impossible for such a facility to be constructed
on-site at Gallatin, and, in fact, noted that TVA had constructed a landfill on site designed to hold
6 million yards of ash. (Tr. v. 3, 133:23-134:1).
260. TVA provided no evidence as to why on-site disposal of ash in a lined landfill was
not feasible.
36

CONCLUSIONS OF LAW
VI. CONSERVATION GROUPS STANDING
261. As evidenced by the standing affidavits submitted by Conservation Groups and
agreement of the Parties, the Court finds that Conservation Groups have standing to bring the
claims alleged and to seek the relief requested in the Complaint. (Dkt. 219).4
VII. THE CLEAN WATER ACT
262. It is the goal of the Clean Water Act to restore and maintain the chemical,
physical, and biological integrity of the Nations waters. 33 U.S.C. 1251(a).
263. The Clean Water Act is a strict liability statute whereby the discharge of any
covered pollutant into the Nations waters amounts to a violation of the statute unless subject to a
specific exception. Sierra Club v. ICG Hazard, LLC, 781 F.3d 281, 284 (6th Cir. 2015).
264. The exception to the Clean Water Acts prohibition on pollution is compliance
with a permit issued under the National Pollution Discharge Elimination System. Sierra Club v.
ICG Hazard, LLC, 781 F.3d at 284; 33 U.S.C. 1362(12)(a).
265. In addition to unpermitted discharges of pollution, a violation of any NPDES
permit provision is a violation of the Clean Water Act enforceable by citizen suit. 33 U.S.C.
1365(a)(1)(A), (f)(6); 40 C.F.R. 122.41(a) (Any permit noncompliance constitutes a violation
of the Clean Water Act and is grounds for enforcement action.); Am. Canoe Assn v. City of
Louisa Water & Sewer Commn, 389 F.3d 536, 539 (6th Cir. 2004).
4
The Parties have stipulated that, For purposes of establishing the constitutional requirements of standing under
Article III of the U.S. Constitution and the Clean Water Act, 33 U.S.C. 1365 (CWA), the parties stipulate to the
admission at Trial, without objections, of the testimony compliant with 28 U.S.C. 1746 and set forth in the
Standing Affidavits attached to the Complaint (Dkt. Nos. 1-5).TVA agrees that the testimony set forth in the
Standing Affidavits (Dkt. Nos. 1-5) satisfies the standing requirements of Article III and the CWA to assert Plaintiffs
claims and demands for relief in this citizen enforcement action and that TVA will not pursue its Tenth Defense as to
standing (Dkt. 16 at PageID 564) in regard to the testimony that is set forth in the Standing Affidavits.).
37

VIII. VIOLATIONS OF TVAS NPDES PERMIT FOR THE ASH POND COMPLEX
266. NPDES permits are required for discharges of pollutants to the waters of the State
because federal and state statute require that such discharges have a permit that authorizes the
discharge of pollutants that would comply and protect designated uses of receiving streams. (Tr.
v. 2, 32:20-33:3).
267. The discharge of coal ash pollutants from the Gallatin Plants Ash Pond Complex
to the Cumberland River is authorized and governed by a TDEC-issued NPDES Permit No.
TN0005428 (NPDES Permit or the Permit). (J. Ex. 102).
268. The Non-Registered Site is not covered by this or any other permit, and there is
no exception for discharges of pollution for those from the NRS.
269. TVAs NPDES Permit for the Gallatin Plant was issued July 1, 2012 and expires
May 31, 2017. (Tr. v. 2, 37:3-22; J. Ex. 102).
270. The Permit contains effluent limitations and monitoring requirements. (J. Ex. 102
at 1-2; Tr. v. 2, 42:20-23).
271. Under the Permit, TVA may discharge coal ash wastewater from only one outfall,
Outfall 001. (J. Ex. 102; Tr. v. 2, 40:21-24; 41:13-17).
272. [T]he Court must interpret an NPDES Permit in the same manner as it would a
contract, determining first whether a particular term has an unambiguous meaning, and, if the
meaning is ambiguous, looking to the document as a whole, its underlying purpose, and, if
necessary, appropriate extrinsic evidence to aid the Court's construction. Tenn. Clean Water
Network v. TVA, 206 F. Supp. 3d 1280 (M.D. Tenn. 2016) (citing Piney Run Preservation Assn v.
County Comrs of Carrol County, MD, 268 F.3d 255, 269-70) (4th Cir. 2001).
38

273. TVAs NPDES Permits, both 2005 and 2012, are both clear that Outfall 001 is the
only location from which TVA can lawfully discharge coal ash wastewater from the Ash Pond
Complex.
274. Accordingly, TVA need not look to extrinsic evidence to determine whether there
are any other permissible discharges of coal ash wastewater from the Ash Pond Complex.
TCWN, 206 F. Supp. 3d at 1302.
A. TVA is in Violation of the Removed Substances Provision of the Permit.
275. TVAs 2012 NPDES Permit I.A.c. is referred to as the Removed Substances
Provision, and provides:
Sludge or any other material removed by any treatment works must be

disposed of in a manner, which prevents its entrance into or pollution of
any surface or subsurface waters. Additionally, the disposal of such sludge
or other material must be in compliance with the Tennessee Solid Waste
Disposal Act, TCA 68-31-101 et seq. and the Tennessee Hazardous
Waste Management Act, TCA 68-46-101 et seq.
(J. Ex. 102, Permit I.A.c)
276. The Removed Substances Provision does not require anything to be removed
from the ash ponds or settling ponds themselves. Rather, it applies to substances removed as a
part of the wastewater treatment process. (Tr. v. 2, 49:23-50:4).
277. TVAs NPDES Permit does not authorize discharge of sludge into groundwater or
surface water, both of which are protected waters under the plain language of Section I.A.cs
surface or subsurface waters. (Tr. v. 3, 51:3-51:5).
278. In the context of the Permit, sludge refers to any material that is removed as part
of the wastewater treatment process, and includes coal ash or other material that is expected to
settle to the bottom of the ponds. (Tr. v. 2, 49:23-50:4).
39

279. At Gallatin, the Ash Pond Complex is a wastewater treatment facility, and the
ponds are used as a settling pond for any pollutants and solids. (Tr. v. 2, 39:9-40:2).
280. The only permitted discharge point for the coal ash waste water is Outfall 001.
(Tr. v. 2, 40:21-24; 41:13-17).
281. In the Yadkin Riverkeeper case, the court explained that, While the state
groundwater regulations aim to ensure the quality of groundwater, the removed substances
provision aims to ensure the integrity of wastewater treatment and control systems. Yadkin
Riverkeeper Inc. v. Duke Energy Carolinas, LLC, 141 F. Supp.3d at 428, 445 (M.D.N.C. 2015).
282. Simply put, If you have a wastewater treatment plant, it can't leak. Id.5
283. The Removed Substances Provisions inclusion in the permit is based on the
simple proposition that there is no way one can protect the water quality of the waters of the
United States if [a polluter] is allowed to redeposit the pollutants collected in [] settling ponds
back in the waters of the United States since that would be contrary to the general requirements
[and] conditions of the CWA. In the Matter of: 539 Alaska Placer Miners, More or Less, & 415
Alaska Placer Miners, More or Less, Permittees, No. 1085-06-14-402C, 1990 WL 324284, at *8
(E.P.A. Mar. 26, 1990).
284. Uniformly, courts have long recognized the importance of removed substances
permit provisions to ensure that measures shall be taken to assure that pollutants materials
removed from the process water and waste streams will be retained in storage areas and not
5
In Yadkin, the defendants motion to dismiss the plaintiffs claim for violation of the removed substances provision
was denied. The court explained, The Court finds it plausible for the Riverkeepers to characterize substances that
have settled to the bottom of the lagoons as having been removed in the course of treatment. Also plausible is the
Riverkeepers' allegation that Duke Energy used the coal ash lagoons to dispose of coal ash and other wastes. The
Riverkeepers further allege that coal ash pollutants have been found in the groundwater at Buck and have been
entering state waters and navigable waters of the United States. Taken as true, these factual allegations allow the
Court to draw the reasonable inference that substances removed in the course of wastewater treatment at Buck have
been disposed of in a manner that has allowed pollutants to enter protected waters. The Riverkeepers have thus
stated a claim upon which relief can be granted, and dismissal is not warranted under Rule 12(b)(6). 141 F. Supp.
3d at 447 (citations omitted).
40

discharged or released to waters of the U.S. In re: 539 Alaska Placer Miners, 1990 WL 324284,
at *8 (emphasis added); see also 40 C.F.R. 440.148(c) (Measures shall be taken to assure that
pollutant materials removed from the process water and wastewater streams will be retained in
storage areas and not discharged or released to the waters of the United States.); United States v.
New Portland Meadows, Inc., No. 00-507-AS, 2002 WL 31180956, * 2 (D. Or. Sept. 9, 2002)
(where a NPDES permit prohibited Defendant from allowing a direct discharge or potentially
harmful indirect discharge to state waters and Defendant allowed such a discharge, then
Defendant discharged contaminants without authorization by an NPDES permit.).
285. As set forth above, the Ash Pond Complex was constructed in the water table and
coal ash is in perpetual contact with groundwater, as evidenced by recent potentiometric surface
tests and TVAs own historical documents. Coal ash and chemicals that leach from coal ash
escape from the Ash Pond Complex through the groundwater into the river. Coal ash constituents
and waste also escape through fissures, sink holes, and conduits to the groundwater and directly
into the surface water.
286. The Ash Pond Complex is situated over karst features that cannot and have not
been eliminated or adequately plugged.
287. Further, chemical evaluation of the groundwater and surface water establishes that
TVA is allowing coal ash constituents to enter the groundwater and surface water, both of which
are protected waters under Section I.A.c.
288. TVA admits that groundwater monitoring well data show contaminants in its wells
at the Ash Pond Complex. Tests have identified coal ash constituents in groundwater monitoring
wells, in drinking water wells near the Gallatin Plant, and in surface waters near seeps.
41

289. Boron isotope fingerprinting confirmed that these contaminants are from the coal
ash, and not from any other source.
290. TVAs disposal of removed substances is conducted in a manner that results in the
substances entering protected waters and thus violates Part I.A., Subsection (c) of its NPDES
Permitthe Removed Substances Provisionby allowing coal ash pollutants to enter
groundwater and surface water through flows other than Permit Outfall 001.
291. The Court concludes, therefore, that substances removed in the course of
wastewater treatment at Gallatin have been disposed of in a manner that has allowed pollutants
to enter protected waters, defined in the Permit as surface and subsurface waters, in violation of
the Removed Substances provision of TVAs NPDES Permit. Yadkin Riverkeeper, 141 F. Supp.
3d at 447.
B. TVA is in Violation of the Sanitary Sewer Overflow Provision of its Permit.
292. NPDES Permit II.C.3.b. forbids Sanitary Sewer Overflows and forbids the
discharge to land or water of wastes from any portion of the collection, transmission, or
treatment systems other than through permitted outfalls.
293. In the context of TVAs NPDES Permit, sanitary sewer means any wastewater at
the facility that is authorized by the Permit. (Tr. v. 2, 51:6-52:6).
294. Like section I.A.c., which protects surface and subsurface water, the Sanitary
Sewer Overflow provision generally protects water without distinguishing between surface or
subsurface water.
295. For the same reasons that the Court finds that TVA has violated the Removed
Substances Provision of its Permit, the Court also finds that TVA is in violation of the Sanitary
Sewer Overflow provision of the Permit.
42

C. TVA is in Violation of the Proper Operation and Maintenance of its Permit.
296. NPDES Permit II.A.4.a., titled Proper Operations and Maintenance, provides
that TVA is required to at all times properly operate and maintain all facilities and systems (and
related appurtenances) for collection and treatment which are installed or used by the permittee
to achieve compliance with the terms and conditions of the permit.
297. Because coal ash contaminants are discharged from sinkholes, fissures, and seeps
and are not contained within the coal ash impoundments, TVA is not properly operating and
maintaining its coal ash impoundments for collection and treatment of coal ash wastewater.
Accordingly, the Court finds that TVA is in violation of the Proper Operating and Maintenance
provision of its Permit.
298. TVA was aware of a ten foot drainage area on the toe of the dike of the Ash Pond
Complex, but did not attempt to address it until after Conservation Groups issued their 60-day
notice.
299. Conservation Groups photographed wastewater flowing from that area in May of
2015. (Tr. v. 2, 90:8-91:11).
300. Repairs made to the drainage area by TVA were not done so for the purpose of
containing coal ash waste. TVA has never determined that any repairs of sinkholes or other
discharges stopped the flow of pollution from the Ash Pond Complex.
301. For approximately six years, TVA ignored the recommendation of its contractor,
Stantec, that karst was problematic and that it should consider installation of a liner under the
Ash Pond Complex. TVA has never installed a liner at the Ash Pond Complex.
43

D. Discharges from Seeps at the Ash Pond Complex are Violations of the Permit.
302. Vojin Janjic was the manager of the water-based systems unit in TDECs Division
of Water Resources at the time the Gallatin NPDES Permit was issued. (Tr. v.2, 41:4-7; 36:12-
24).
303. Mr. Janjic was involved in reviewing the Permit application, preparing the draft
Permit, reading the comments, and instructing TDEC staff on how to prepare the final Permit and
addendum to rationale. (Tr. v.2, 36:12-24).
304. According to Mr. Janjic, a discernable flow of water is one that is more than a wet
spot, but one with actual flowing water. (Tr. v.2, 46:20-47:1).
305. TVA argues that it was allowed, as part of its NPDES Permit, to have and
maintain seeps in the walls of the Ash Pond Complex because TDEC contemplated such seeps
when issuing its Permit.
306. Mr. Janjic testified the Permit requires that if a seep is identified by expressing
itself in a manner described in the Permit, the seep must be addressed. (Tr. v. 2, 43:12-23).
307. Two concerns TDEC has with seeps are structural integrity and water quality, with
the primary concern being structural integrity. (Tr. v. 2, 44:24-45:3).
308. In applying for its NPDES Permit, TVA did not specifically identify any
discharges from the bottom of the Ash Pond Complex in the NPDES Permit application, and
according to Mr. Janjic, seepage from the bottom of the Ash Pond Complex is not authorized or
identified in the NPDES Permit. (Tr. v. 2, 48:10-49:4).
309. While TDEC recognized that unlined impoundments may develop a certain
amount of seepage, this does not include discharges through sinkholes or fissures. Id.
44

310. In support of its argument that the NPDES Permit allowed seeps, TVA presented
evidence of one comment letter from a citizen group to TDEC about seeps that was included in
the Permit Rationale. (Tr. v. 2, 56:25-59:16).
311. The permit rationale does not have any impact on restrictions that are placed in
the permit. It is not part of the permit. (Tr. v. 2, 34:22-35:12; 55:21-56:14).
312. Because the Permit is clear that Outfall 001 is the only permissible discharge
point, the Court will not consider extrinsic evidence contained in the Permit Rationale, and
TVAs argument fails. Cf. Tennessee Clean Water Network v. Tennessee Valley Authority, 206 F.
Supp. 3d 1280, 1285, 1302 (M.D. Tenn. 2016).
313. Moreover, the Court finds that while the permit rationale describes the process
and rationale that TDEC uses to arrive at permit limitations and conditions, it does not have any
impact on the restrictions that are placed in the permit. It is not part of the permit. (Tr. v. 2,
34:22-35:12; 55:21-56:14).
314. Additionally, TVA presented no evidence that it brought the possibility of seeps to
the attention of TVA, let alone any specific seeps or karst features that would allow discharges
from the Ash Pond Complex.
315. Accordingly, under the clear language of the Permit, the Court disagrees with
TVA that seeps were permitted. The Court further finds that unrepaired seeps and discharge
through underground fissures and sinkholes at the Ash Pond Complex were not contemplated by
TDEC when issuing the Permit and constitute violations of the Permit.
45

IX. UNPERMITTED POINT SOURCE DISCHARGES OF POLLUTION ARE
VIOLATIONS OF THE CLEAN WATER ACT
316. The NPDES program imposes limits on the type and quantity of pollutants that
may be released into the Nations waters from any point source. S. Fla. Water Mgmt. Dist. v.
Miccosukee Tribe, 541 U.S. 95, 102 (2004).
317. Discharge of pollutants from a point source into waters of the United States
without an NPDES permit, or in violation of the terms of an NPDES permit, is a violation of the
CWA. 33 U.S.C. 1331(a), 1342(a), 1365(f)(6).
318. TVA is a person for purposes of the Act, which defines person as an individual,
corporation, partnership, association, State, municipality, commission, or political subdivision of
a State, or any interstate body. 33 U.S.C. 1362(5).
319. Coal ash and its constituents fall under the Clean Water Act definition of
pollutants. 6
320. Arsenic, beryllium, cadmium, chromium, lead, nickel, selenium, and thallium are
all toxic pollutants, 40 C.F.R. 401.15, and priority pollutants under the Clean Water Act, 40
C.F.R Part 423 Appendix A.
321. The Cumberland River and Old Hickory Lake are waters of the United States. 40
C.F.R. 122.2; Dkt. 16 at PageID 558.
322. At issue here, with respect to interpretation of the Clean Water Act, are (1)
whether the coal ash ponds are point sources under the CWA and (2) whether groundwater that is
hydrologically connected to surface water is protected under the CWA.
6
Pollutant is defined as dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural waste discharged into water. 33 U.S.C. 1362(6).
46

A. The Non Registered Site and Ash Pond Complex Are Point Sources.
323. A point source is any discernable, confined, and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or]
container . . . from which pollutants are or may be discharged. 33 U.S.C. 1362(14); Ohio
Valley Environmental Coa. v. Hernshaw Partners, LLC, 984 F. Supp. 2d 589, 599 (S.D.W.Va.
2013).
324. The definition of point source is intended to be interpreted broadly, as indicated
by the statutes included but not limited to language. United States v. Earth Sciences, Inc., 599
F.2d 368, 373-74 (10th Cir. 1979) (The concept of a point source was designed to further this
scheme by embracing the broadest possible definition of any identifiable conveyance from which
pollutants might enter the waters of the United States.).
325. Courts have recently found that coal ash ponds, slurry ponds, drainage ponds, and
coal refuse piles are point sources. See Exhibit A, Sierra Club v. Va. Elec. and Power Co., No.
2:15-CV-112, 2017 WL 1095039, at 14 (E.D. Va. Mar. 23, 2017), Yadkin, 141 F. Supp. 3d at
443-44 (M.D.N.C. 2015) (As confined and discrete conveyances, the lagoons fall within the
CWAs definition of point source.); see also Consolidation Coal Co. v. Costle, 604 F.2d 239,
249-50 (4th Cir. 1979), revd on other grounds, 449 U.S. 64 (1980); Sierra Club v. Abston
Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980) (mere collection of rock and other materials can
constitute a point source if it results in a discharge to waters); United States v. Alpha Nat. Res.,
Inc. No. CIV.A. 2:14-11609, 2014 6686690, at *1 (S.D.W.Va. Nov. 26, 2014) (discharges from
coal mining operations are point sources).
326. In Yadkin Riverkeeper, the Middle District of North Carolina found that coal ash
ponds like TVAs ponds in this case are surface impoundments designed to hold accumulated
47

coal ash in the form of liquid waste,; [t]hey are impounded by dams, and thus they are
defined and discrete. Yadkin, 141 F. Supp. 3d at 443-44 (M.D.N.C. 2015). The court further
found that, [b]ecause the [coal ash] lagoons are allegedly unlined and leaking pollutants into
groundwater, they are also allegedly conveying pollutants to navigable waters. Id. at 444. Thus,
the court concluded that [a]s confined and discrete conveyances, the lagoons fall within the
CWAs definition of point source. Id.
327. The United States District Court for the Eastern District of Virginia has likewise
recently concluded that coal ash ponds are point sources. The court found that Dominion Power
built the piles and ponds to concentrate coal ash, and its constituent pollutants, in one location.
The court explained, Essentially, they are discrete mechanisms that convey pollutants from the
old power plant to the river. Ex. A, Sierra Club, at 14.
328. The same is true here, and the Court finds that the TVAs Non-Registered Site and
Ash Pond Complex are point sources under the Clean Water Act. Yadkin Riverkeeper, Inc., 141 F.
Supp. 3d at 443-44.7
B. Discharges to Surface Water through Hydrologically Connected

Groundwater Are Subject to the Clean Water Act.
329. Under EPAs longstanding interpretation of the Clean Water Act, the discharge of
a pollutant from a point source to surface waters of the United States via a direct hydrological
connection through groundwater is subject to the Act. See 66 Fed. Reg. 2,960, 3,015, 3,017 (Jan.
12, 2001) (EPA is restating that the Agency interprets the CWA to apply to discharges of
pollutants from a point source via ground water that has a direct hydrologic connection to surface
water.; As a legal and factual matter, EPA has made a determination that, in general, collected
7
The size of the point source is not determinative, nor even a consideration under the statute. In fact, TVA itself has
argued that [a]n entire facility or industrial plant may be a point source. See Dkt. 103 at PageID 3742 n.2 (citing
Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1319 (S.D. Iowa 1997)).
48

or channeled pollutants conveyed to surface waters via ground water can constitute a discharge
subject to the Clean Water Act.); 56 Fed. Reg. 64,876, 64,892 (Dec. 12, 1991) (discharges to
[groundwater] are regulated because such discharges are effectively discharges to the directly
connected surface waters.); 55 Fed. Reg. 47,990, 47,997 (Dec. 2, 1990) (promulgation of storm
water regulations in which EPA explained that this rulemaking only addresses discharges to
water of the United States, consequently discharges to ground water are not covered by this
rulemaking (unless there is a hydrological connection between the ground water and a nearby
surface water body).) (emphasis added).
330. EPAs interpretation of the scope of the CWA is entitled to deference. Chevron
U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984); United States v. Mead, 533 U.S.
218, 226-28 (2001); Harpeth River Watershed Assoc. v. City of Franklin, No. 3:14-1743, 2016
WL 827584, at *4 (M.D. Tenn. Mar. 3, 2016).
331. Like EPA, a majority of courts, including this court, have found that groundwater
that is hydrologically connected to surface water is a regulated water of the United States, and
unpermitted discharges into such groundwater are prohibited under the CWA. Assn Concerned
Over Resources and Nature, Inc. v. Tenn. Aluminum Processors, Inc., No. 1:10-00084, 2011 WL
1357690, at *17 (M.D. Tenn. Apr. 11, 2011) (citations omitted).
332. Other courts have reasoned that it would hardly make sense for the CWA to
encompass a polluter who discharges pollutants via a pipe running from the factory directly to
the riverbank, but not a polluter who dumps the same pollutants into a man-made settling basin
some distance short of the river and then allows the pollutants to seep into the river via the
groundwater. N. Cal. Riverwatch v. Mercer Fraser Co., No. C-04-4620, 2005 WL 2122052, at
*2 (N.D. Cal. Sept. 1, 2005); see also Yadkin Riverkeeper, 141 F. Supp. 3d at 445 (agreeing
49

with the line of cases affirming CWA jurisdiction over the discharge of pollutants to navigable
surface waters via hydrologically connected groundwater, which serves as a conduit between the
point source and the navigable waters.).
333. Most recently, the United States District Court for the Eastern District of Virginia
found that there was a direct hydrologic connection between unlined coal ash impoundments and
the adjacent surface water, stating, Congress intended to protect the water quality of the nations
surface water. Where the facts show a direct hydrologic connection between ground water and
surface water, that goal would be defeated if the CWAs jurisdiction did not extend to discharges
to that groundwater. Sierra Club, Ex. A, at 12.
334. The Court finds that karst limestone formations exist at Gallatin below the Ash
Pond Complex (that are extremely vulnerable to contamination), that TVA has left extensive
karst features unrepaired, that TVA has not installed any liner on the bottom of the ash ponds,
and that there is nothing to stop the ash and pollutants from the ash from flowing through them to
the groundwater and subsequently to the Cumberland River.
335. TVA admits in its own documents that the general direction of ground-water
flow is expected to be from the active ash pond to the river. Bedrock joints and the topography
probably control the actual flow of ground water. Water-table elevations are probably within the
ash disposal pond. (Tr. v. 1, 34:8-24; J. Ex. 44 at 35).
336. TVA also admits that holes or solution cavities in the bedrock can exist below
TVA waste disposal facilities which could result in the flow of impounded water in a waste
disposal facility directly to groundwater with little attenuation. (J. Ex. 45 at 11, 16, 26-28; Tr. v.
1, 34:24-35:28).
50

337. For all of these reasons, the Court finds that there are karst aquifers and
unrepaired karst features below Ash Pond Complex, creating a direct hydrologic connection to
the surface water. (Tr. v. 1, 33:10-13).
338. The Court further finds that the flow of groundwater from Odoms Bend
Peninsula in the NRS and Ash Pond Complex flows to the river, and thus, the groundwater is
hydrologically connected to the surface water at both the NRS and Ash Pond Complex. Ex. A,
Sierra Club, at 14 (The high hydraulic head (along with the proximity of the edge of the Coal
Ash Piles to the surface water) shows that the groundwater flows through the ash and then enters
the surface water through a radial outward flow).
339. TVA has argued that, even if Conservation Groups established that it is polluting
the groundwater at the Gallatin site and that groundwater is hydrologically connected to surface
water, Conservation Groups claims must fail because there is no evidence of a traceable
connection between the groundwater and the surface water. (Tr. v. 3, 53:6-14).
340. It is not, however, the intent of the law to require a Clean Water Act claimant to
establish the connection beyond a reasonable doubt, following the molecules of water underneath
the surface through the groundwater to the surface water, as TVA suggests.
341. In Sierra Club v. Virginia Electric and Power, there was no karst topography that
allowed water to flow directly into the groundwater, and the court nevertheless found that
groundwater was connected to surface water simply because groundwater at the CEC site
moves radially outward-toward the surface water. Ex. A at 5. The same is true here.
342. Here, in addition to the groundwater flow, the proof supports the finding of a
direct hydrologic connection apart from the karst topography.
51

343. Specifically, the impoundments are unlined and located on a peninsula that sits in
the river; consequently, there is proximity to the Cumberland River. Further, the groundwater
and surface water are both contaminated with coal ash contaminants. Elizabeth Perry testified
that at the NRS, groundwater flows into the River at 9,490 cubic feet per day. (Tr. v. 4, 55:2-4).
344. At the Ash Pond Complex, the karst geography adds to the evidence, and supports
the hydrological connection beyond facts that what would otherwise be sufficient to establish the
connection without the karst. Accordingly, TVAs argument is without merit.
345. The Court finds that at both the Ash Pond Complex and the NRS, groundwater is
directly hydrologically connected to surface water. Therefore, the evidence of TVAs discharges
of coal ash and pollutants to the surrounding surface waters via this hydrologically connected
groundwater establishes liability under the Clean Water Act.
X. CONTINUING VIOLATIONS.
346. TVA argues that its current unpermitted discharges cannot be the basis for
cognizable claims because the current pollution cannot be distinguished chemically from
pollution that it discharged from the impoundments in the past.
347. In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., the United
States Supreme Court ruled that wholly past violations of effluent standards are not cognizable
under the Clean Water Acts citizen suit provision. Gwaltney, 484 U.S. 49, 57 (1987); see also
Brewer v. Ravan, 680 F. Supp. 1176, 1183 (M.D. Tenn. 1988) (Wiseman, J.) (allegation that
defendant violated PCB effluent limitation five years before complaint was filed was not enough
to sustain a Clean Water Act claim where plaintiff did not allege that violations were reasonably
likely to continue in the future).
348. Gwaltney did not involve the ongoing flow of pollutants from a point source to a
navigable waterway; instead, it addressed a wholly past violation that was no longer continuing.
52

349. Several courts that have followed the Supreme Courts decision in Gwaltney and
held that Clean Water Act discharge violations are ongoing when a pollutant previously added
to a site or to groundwater continues to reach a navigable waterway. Ohio Valley Envtl. Coal. v.
Pocahontas Land Corp., No. CIV.A. 3:14-11333, 2015 WL 2144905, at *10 (S.D.W.Va. May 7,
2015) (Clean Water Act liability can exist for pollutant discharges from previously constructed
valley fill toes into downstream waters); Ohio Valley Envtl. Coal. v. Hernshaw Partners, LLC,
984 F. Supp. 2d 589, 598 (S.D.W.Va. 2013) (one may continue to be in violation of the Clean
Water Act even if the activities that caused the violations have ceased); N.C. Wildlife Fedn v.
Woodbury, No. 87-584-Civ-5, 1989 WL 106517, at *2*3 (E.D.N.C. Apr. 25, 1989) (holding that
discharges to wetlands were continuing and actionable); see also Umatilla Waterquality
Protective Assn, Inc. v. Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1322 (D. Or. 1997)
(pollutant discharges from old unlined brine pond to navigable water through connected
groundwater are ongoing); Werlein v. United States, 746 F. Supp. 887, 896 (D. Minn. 1990),
vacated in part on other grounds, 793 F. Supp. 898 (D. Minn. 1992) (chemical discharges into
lakes due to rainwater infiltration through soil where ammunition was dumped years earlier are
ongoing).
350. Courts have also recognized that a defendant violates the Clean Water Act when
pollutants move from a contamination source to a waterway, even though the pollutants are
flowing from a location where the defendant discharged them years before. Sierra Club v. Va.
Elec. & Power Co., 145 F. Supp. 3d 601, 607-08 (E.D. Va. 2015) (discharges of coal ash
pollutants from old lagoon through groundwater); Yadkin Riverkeeper, 141 F. Supp. 3d at 445
(discharges of coal ash pollutants from old lagoon through surface impoundment seeps and
groundwater).
53

351. As the court in Werlein v. United States recognized, the Clean Water Act requires
that polluters be held responsible for ongoing migration and discharge of pollutants:
Clearly, the purpose of the Clean Water Act is to prevent the pollution of water.
Where a polluter dumps toxic substances directly into a waterway, the damage
is done, and that violation is wholly past under Gwaltney if plaintiffs later file
suit. Here, though, there is toxic waste that has not yet reached a waterway, but
is being introduced into the waterway over time. This is an ongoing pollution
of a waterway. There are toxic substances at the Trio Solvents site that may yet
be prevented from entering the water. This is consistent with the goal of the
CWA, and with the reasoning of Gwaltney.
746 F. Supp. at 897 (emphasis added).
352. Congress did not intend to exempt polluters who continually discharge pollutants
into United States watersespecially when, as here, the polluter can prevent ongoing discharges
that otherwise could continue for decades into the future.
353. The to be in violation of language in federal anti-pollution laws includes
pollution like TVAs coal ash pollution. The statutory phrase to be in violation of:
[D]oes not necessarily require that a defendant be currently engaged in the

activity causing the continuous or ongoing violation. Rather, the proper inquiry
centers on whether the defendants actions past or present cause an ongoing
violation . . . . In other words, although a defendants conduct that is causing a
violation may have ceased in the past . . . what is relevant is that the violation is
continuous or ongoing.
Goldfarb v. Mayor of Baltimore, 791 F.3d 500, 513 (4th Cir. 2015) (interpreting language in the
Resource Conservation and Recovery Act (RCRA)) (emphases in original) (internal quotations
and citations omitted).
354. The to be in violation language in the RCRA statute is identical to the Clean
Water Act language interpreted in Gwaltney. When a company has violated an effluent standard
or limitation, it remains, for purposes of 505(a), in violation of that standard or limitation so
long as it has not put in place remedial measures that clearly eliminate the cause of the
violation. Gwaltney, 484 U.S. at 69 (Scalia, J., concurring).
54

355. In this case, the Conservation Groups have alleged that there are ongoing Clean
Water Act violations due to continuing discharges from identified point sources, and TVA
acknowledges that the coal ash contamination in the river is from its operation of the Gallatin
Plant (D. Ex. 205 at PageID 8558; Tr. v. 3, Dkt 236 at 80).
356. Accordingly, the fact that there could be lingering sources of ongoing coal ash
pollution in the Cumberland River does not bar Conservation Groups claims.
357. If anything, the fact that coal ash contamination remains in the river and that TVA
is continuing to pollute the river, establishes that the coal ash pollution is ongoing and that TVA
is liable for a continuing violation of the Act.
XI. DILIGENT PROSECUTION.
358. For the diligent prosecution bar to apply and bar a citizen suit, the agency suit
must seek to enforce the same standard, limitation, or order as the citizen suit. Cal. Sportfishing
Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d 868, 874 (9th Cir. 2013) (Subsection (b)'s
reference to the clean-water standard makes clear that it must be the same standard, limitation,
or order that is the subject of the citizen suit under subsection (a).).
359. Thus, the first question in a diligent prosecution inquiry is whether, at the time
the citizen suit was filed, the EPA or state had commenced a judicial action to enforce the same
standard, limitation, or order as the citizen suit. If so, the next question is whether the EPA or
state was diligently prosecuting its enforcement action at the time the citizen suit was filed.
Yadkin Riverkeeper, 141 F.3d at 440 (citations omitted).
360. Further, a diligent prosecution bar only applies to those issues sought to be
addressed in a citizen action that overlap with those issues sought to be addressed by the
governments suit. Id. (quoting United States v. Bd. of Cty. Commrs of Hamilton Cty., Ohio,
No. 1:02 cv 00107, 2005 WL 2033708, at *11 (S.D. Ohio Aug. 23, 2005)).
55

361. The question of diligent prosecution is one that looks at what was alleged at the
time the citizen suit was filed. Yadkin, 141 F.3d at 440.
362. Nothing about the allegations in this case has changed since the Court declined to
dismiss this case on grounds of diligent prosecution in terms of what Conservation Groups
alleged in this action as opposed to the State Court Action.
363. Today, as then, Plaintiffs have identified five sets of allegations raised by their
Complaint that are, they contend, omitted from the State Enforcement Action, and Plaintiffs
allege violations of the NPDES Permit that are not cited by the State. (Dkt. 139 at PageID 5341).
364. Specifically, the State Action targets groundwater at the NRS rather than surface
water discharges through seeps or leaks from hydrologic connections. Id. at Page ID 5341-42.
365. As for the Ash Pond Complex, Conservation Groups claims reach all hydrologic
connections, not merely seeps, but contemplate[] both leaks that are purely seeps and leaks
based entirely or in part on faster-moving conduit flows, such as through sinkholes and fissures.
Id. at Page ID 5442.
366. Since the time the allegations in the Complaint were made, however,
Conservation Groups have put forth evidence to support the existence of discharges from the
NRS to the surface water and the existence of conduit flow, such as through sinkholes and
fissures under the Ash Pond Complex.
367. As the proof conformed to the Conservation Groups complaint, the diligent
prosecution bar is no more applicable now than when the Court ruled on TVAs dispositive
motion on this issue.
368. As for whether the diligent prosecution bar applies here because the remedies
sought may be the same, TVA presented no evidence that the State intends to seek the same
56

remedy that Conservation Groups seek here, namely a permanent injunction requiring excavation
and removal of the coal ash.
369. In this action, the appropriate remedy is determined by what will be required for
TVA to come in compliance with both the Clean Water Act and the Permit, as the Supreme Court
concluded in Weinberger v. Romero-Barcelo, 456 U.S. 305, 318 (1982) (courts must order relief
that will achieve compliance with the [Clean Water] Act).
370. Moreover, the penalties available under the Clean Water Act are $35,700 per day
per violation before August 1, 2016, and violations after November 2, 2015, where penalties are
assessed on or after January 15, 2017 are $52,414 per day per violation. 40 C.F.R. 19.2, 19.4.
371. In comparison, the penalties sought in the State Action are not to exceed $7,000
per day for violations of the Solid Waste Disposal Act, Tenn. Code Ann. 68-211-177 or $10,000
per day for violations of the Tennessee Water Quality Control Act, Tenn. Code Ann. 69-3-115.
372. For these reasons, the Court finds that Conservation Groups claims are not barred
by diligent prosecution.
XII. REMEDIES.
373. Conservation Groups have asked the Court to grant permanent injunctive relief
to stop the ongoing Clean Water Act and NPDES Permit violations from coal ash pollution at the
Gallatin Fossil Plant; to assess civil monetary penalties pursuant to 33 U.S.C. 1319(d),
1365(a), and the civil penalty inflation adjustments, e.g., 74 Fed. Reg. 626 (Jan. 2009); to award
Conservation Groups the costs of this action, as authorized by 33 U.S.C. 1365(d); and to grant
Conservation Groups such further and additional relief as the Court deems just and proper.
57

A. The Removed Substances Provision of the Permit Requires that TVA Remove
Its Coal Ash from the Groundwater.
374. The Removed Substances Provision prohibits TVA from allowing [s]ludge or
any other material removed by any treatment works, including the coal ash in the Gallatin pits,
to ent[er] into . . . any surface or subsurface waters. At Gallatin, the coal ash is stored in
subsurface groundwater and would remain in the groundwater if left in place under a cap. This is
a direct violation of the Permit and thus of the Clean Water Act.
375. The Removed Substances Provisions prohibition against coal ash sludges and
other materials entering subsurface waters means that, in order to comply with the Permit, the
coal ash must be removed from the groundwater at Gallatin. To allow TVA to leave its coal ash
sitting in subsurface waters would directly contradict the Removed Substances Provisions plain
language. In effect, such an outcome would rewrite the Permitwhich has been subject to
public notice and comment and the opportunity for judicial reviewto excuse TVA from
compliance with its express terms. The Court will not excuse TVA from compliance with its
Permit.
376. Thus, in order to comply with the plain language of the Removed Substances
Provision of its NPDES Permit, TVA must remove all coal ash from the subsurface waters at
Gallatin. This requirement applies independently of the equitable analysis set forth below.
377. TVA has accepted the terms of the Permit, has not administratively challenged
those terms, and receives the benefits of the Permit: authorization to discharge pollutants in
compliance with the Permits terms, and a shield from Clean Water Act enforcement to the
limited extent allowed by 1342(k). By the same token, TVA must comply with all the
provisions of its Permit, including the Removed Substances provision.
58

378. Congress explicitly provided that National Pollutant Discharge Elimination
System permits would be issued either by the Administrator of the EPA, 33 U.S.C. 1342(a), or
as in this case, the states that administer permitting programs that comply with the requirements
of the Clean Water Act, 33 U.S.C. 1342(b).
379. Among other requirements, before a permit is issued, the public must be notified
and have an opportunity to comment on the proposed permit. 33 U.S.C. 1342 (b)(3).
380. Congress set out many requirements for the issuance of permits, including a
requirement that the discharger submit an application meeting the requirements of the Clean
Water Act. 33 U.S.C. 1342(p)(4).
381. In this instance, the Clean Water Act permit was issued by TDEC, under an
express delegation of authority from the EPA. In this instance, the Clean Water Act permit was
issued by TDEC, under an express delegation of authority from the EPA. See J. Ex. 102 (Permit
issued, Under authority of the Tennessee Water Quality Control Act of 1977 (T.C.A. 69-3-101 et
seq.)
382. Issuance of Clean Water Act permits in Tennessee is further governed by state
statutes and regulations that guarantee public participation and the right of judicial review by
affected members of the public. See, e.g., Tenn. Code Ann. 69-3-111 (setting forth appeal and
review process pursuant to Tennessee Quality Control Act).
383. Nothing in the Clean Water Act authorizes federal courts to play any role in the
issuance or modification of permits.
384. If this Court disregarded or refused to enforce any provision of TVAs NPDES
Permit, it would essentially be rewriting the terms of the Permit without the public notice, public
comment, and administrative process requirements that Congress set out in the Clean Water Act,
59

that EPA set out in its delegation of authority to Tennessee, and that Tennessee has set out in its
laws and regulations.
385. If Congress intended for federal courts to have the authority to amend, modify, or
to refuse to enforce provisions of a permit, it would have set out that authority in the Clean Water
Act. But Congress did not set out such a role for the federal courts.
386. The role of the federal courts is to enforce the permit as written: The district
courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of
the parties, to enforce such an effluent standard or limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil
penalties under Section 1319 (d) if this title. 33 U.S.C. 1365(a)(2).
387. Therefore, the Clean Water Act does not authorize this Court to refuse to enforce
any Permit provision because a TVA objects to its expense or claims difficulty in complying with
the Permit provision.
388. TVA had the opportunity to contest the Permit through the state permitting
process and also could have chosen not to accept the Permit as written and operated without
discharging into United States waters.
389. However, once TVAs Permit became final and TVA decided to accept it, then the
Permit governs TVA operations.
390. As courts in the Sixth Circuit has explained, a permittee must comply with all the
terms of its NPDES permit, and cannot be excused from compliance without its permit officially
being modified according to the proper procedures. In light of the supremacy of federal law in
this area, the operation of the terms and conditions of a NPDES Permit cannot [be]
suspend[ed] without following appropriate procedures. United States v. City of Toledo, 867 F.
60

Supp. 603, 606-07 (N.D. Ohio 1994) (citing United States v. Ohio Edison Co., 725 F. Supp. 928
(N.D. Ohio 1989) (state agency could not suspend cooling tower requirement of NPDES permit
without first providing public notice and hearing); United States v. Sharon Steel Corp., 30 Envt.
Rep. 1778 (N.D. Ohio 1989); United States v. City of Bedford, 1988 WL 489746 (N.D. Ohio July
14, 1988)).
391. Accordingly, where a state agency entered into a consent order that excused the
permittee from complying with its NPDES permit by putting in place interim limitations
different from those in the permit, the court held that the permittees NPDES permit has not
been properly modified and that the NPDES permit remained in full force and effect. Frilling
v. Vill. of Anna, 924 F. Supp. 821, 829, 837 (S.D. Ohio 1996).
392. This structure applies equally to all permit provisions, not just numeric effluent
limitations.
393. Because TVA has deposited its coal ash in surface and subsurface waters, in direct
violation of the Removed Substances provision of the Permit, the ash must be removed in order
to comply with the Permit.
B. The Clean Water Act Requires TVA to Stop Its Ongoing Unpermitted
Discharges and Remedy Its past Violations.
394. In passing the CWA, Congress made a clear policy choice in favor of
environmental protection. (There is no exception to permit compliance because such compliance
is expensive.) Ohio Valley Envtl. Coal., Inc. v. Apogee Coal Co., LLC, 555 F. Supp. 2d 640, 649
(S.D.W.Va. 2008).
395. The U.S. Supreme Court in Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982),
in effect found that Congress has already placed its hand on the scale, requiring courts to order
61

relief that will achieve compliance with the [Clean Water] Act, id. at 318 (emphasis in original),
while making clear that courts still retain some equitable discretion.
396. While district courts have equitable discretion in fashioning a remedy, they may
not reject the balance that Congress has struck in a statute. United States v. Oakland Cannabis
Buyers Coop., 532 U.S. 483, 497-98 (2001).
397. Accordingly, where one potential remedy will result in compliance with the Act
and/or a NPDES permit requirement, and another remedy will not, the court is obligated to order
the remedy that will result in compliance with the Act and/or the NPDES permit. Weinberger,
456 U.S. at 318. To do otherwise would be to rewrite the terms of the Clean Water Act or the
applicable NPDES permit.
398. [T]he public will be served by the protection of aquatic resources, as intended by
the goals and purposes of the CWA . . . . Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., 808
F. Supp. 2d 868, 899-900 (S.D.W.Va. 2011) (plaintiffs entitled to permanent injunction for permit
violations).
399. This Court has the equitable authority to order a full and complete remedy for the
continuing harms caused by TVAs past violations, in accordance with the fundamental goals of
the Clean Water Act.
400. These orders are consistent with longstanding Clean Water Act precedent. To
achieve compliance, courts regularly order the removal of illegally deposited materials that
continue to violate the Clean Water Act.
401. For example, in United States v. Cundiff, the Sixth Circuit affirmed the District
Courts remedy requiring the polluter to restore wetlands, despite the fact that the polluter argued
that sufficient remediation would have occurred with actions they were already taking and
62

because it would negatively impact future profits. 555 F.3d 200, 216 (6th Cir. 2009). Finding that
the District Court did not abuse its discretion, the Court cited the Clean Water Act's goal of
restoring and maintaining the chemical, physical, and biological integrity of the Nation's
waters. 555 F.3d at 216. See also United States v. Deaton, 332 F.3d 698 (4th Cir. 2003)
(permanent injunction to remove illegal fill and restore affected area to pre-violation
condition); U.S. Pub. Interest Research Grp. v. Atl. Salmon of Maine, LLC, 339 F.3d 23 (1st Cir.
2003) (citizen suit enforcement provision authorizes injunctive relief to remedy harm caused by
past violation, including removal of illegal pollutants and sources of pollution); United States v.
Smith, 149 F.3d 1172 (4th Cir. 1998) (affirming restorative permanent injunction); U.S. v.
Cumberland Farms, 826 F.2d 1151 (1st Cir. 1987) (affirming injunction to restore 2,000 acre
property to pre-discharge conditions); U.S. v. Ciampitti, 615 F. Supp. 116, 122 (D.N.J. 1984),
affd sub nom. Appeal of Ciampitti, 772 F.2d 893 (3d Cir. 1985), and affd sub nom. United
States v. Diamond Beach Dev. Corp., 772 F.2d 897 (3d Cir. 1985) (There can be no doubt that
this court has the power under the Clean Water Act to order complete restoration for violations
of the Act); U.S. v. Outboard Marine Corp., 549 F. Supp. 1036, 1042 (N.D. Ill. 1982) (Clean
Water Act authorizes pollution cleanup remedies to prevent ongoing and future violations and to
remove past illegal pollution).
402. In cases where the court is in the position of using its equitable discretion to
fashion a remedy in the form of a permanent injunction, a plaintiff must traditionally
demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law,
such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
63

(4) that the public interest would not be disserved by a permanent injunction. eBay, Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
403. Again, as to the first factor, where a federal statute has been violated, and
Congress has expressly provided for injunctive relief to prevent violations of the statute, the
plaintiff need not demonstrate irreparable harm to secure an injunction. Burlington N.R.R. v.
Bair, 957 F.2d 599, 601 (8th Cir. 1992) (citing United States v. City of San Francisco, 310 U.S.
16, 31 (1940)).
404. Nonetheless, as set forth in Section IV(f) above, Conservation Groups have put
forth evidence that there is a threat of irreparable harm to aquatic life in the Cumberland River as
the result of coal ash contamination. (Tr. v. 2, 184:21-24).
405. As to the second factor, environmental injury can seldom be adequately remedied
by monetary damages and is often permanent or at least of long duration, i.e., irreparable.
Amoco Prod. Co. v. Village of Gambell, A.K., 480 U.S. 531, 545 (1987). Accordingly, this factor
weighs in favor of injunctive relief.
406. Third, as to the balancing of the equities, with regard to the Clean Water Act,
Congress has already balanced the equities and has determined that, as a matter of public policy,
an injunction should issue where the defendant is engaged in . . . activity which the statute
prohibits. Burlington N.R.R., 957 F.2d at 602 (citation omitted).
407. Finally, there is a clear public interest in environmental protection and protecting
water quality and aquatic resources, and these interests will be furthered here by the issuance of a
permanent injunction requiring TVA to cease the coal ash pollution from the Gallatin Fossil
Plant. See, e.g., Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., LLC, No. CV 2:13-5006, 2015
64

WL 5972430, at *3 (S.D.W.Va. Oct. 14, 2015) (Protecting water quality a critical public interest
that profoundly outweighs a companys bottom line.) (citations omitted).
408. Specific to evaluation of environmental remediation proposals, courts have
considered the following factors: (1) whether the proposal would confer maximum
environmental benefits, (2) whether it is achievable as a practical matter, (3) whether it bears an
equitable relationship to the degree and kind of wrong to be remedied. Cundiff, 555 F.3d at 216
(6th Cir. 2009) (citing United States v. Deaton, 332 F.3d 698, 714 (4th Cir. 2003)).
409. Here, these factors weigh decidedly in favor of excavation and removal to lined
storage, where excavation and removal of the coal ash is the only way to stop the pollution, and
is achievable, as demonstrated by other utilities closure of coal ash impoundments by excavation
and removal of ash.8
410. It appears that the primary reason for TVAs preference for cap in place is
monetary. However, as set forth above, [t]here is no exception to permit compliance because
such compliance is expensive. Ohio Valley Envtl. Coal., Inc., LLC, 555 F. Supp. 2nd at 649. The
cost of excavation and removal, then, is not a factor in the Courts determination.
411. Even if cost were a factor to be considered, TVAs proof regarding the actual
potential costs of cap in place verses removal is scant.
412. The Court finds that TVAs failure to provide the foundation for its cost estimate
to anyone outside of TVA is fatal to its credibility regarding the estimate.
413. For all of these reasons, while the Court recognizes that there will likely be a
difference in the cost of cap in place and the cost of removal, the Court cannot, based on the
8
The Court reaches no conclusion about whether TVAs preferred cap-in-place remedy meets the requirements of
the federal coal ash rule, and focuses instead on what is the appropriate remedy under the Clean Water Act.
65

evidence presented, adequately evaluate the difference and thus will not consider the cost
difference in making its determination regarding remedy.
414. The Court finds that TVAs unpermitted discharges to the groundwater and to the
Old Hickory Lake will be abated only by the excavation and removal of all coal ash from the
Gallatin Fossil Plant and, to the extent possible, remediation of groundwater contamination
which has resulted from TVAs unpermitted discharges at Gallatin. The facts of this case require
this remedy. The NRS and Ash Pond Complex are unlined. They were constructed within the
groundwater table over karst geology. The ash is currently saturated in groundwater and the ash
ponds are hydrologically connected to the river. TVA has been and is currently causing
unpermitted discharges to the groundwater and river. TVA is in violation of the Removed
Substances, Sanitary Sewer Overflow, and Proper Operations and Maintenance provisions of its
NPDES Permit at the Ash Pond Complex. TVAs own consultants have said that, to correct the
threat that karst poses to the groundwater, TVA should line the bottom of the Ash Pond Complex.
TVA has concluded that installing a liner without excavating the ash is not possible.
415. Excavation and removal is the only effective means by which to prevent the flow
of coal ash pollutants into groundwater from the coal ash disposal facilities, and to prevent the
flow of that contaminated groundwater into the adjacent surface waters of the Cumberland River.
416. If the Court does not order the excavation and removal of ash to halt the ongoing
coal ash pollution, TVA will remain in violation of the Clean Water Act and the Permit. See
Gwaltney, 484 U.S. at 69 (When a company has violated an effluent standard or limitation, it
remains, for purposes of 505(a), in violation of that standard or limitation so long as it has not
put in place remedial measures that clearly eliminate the cause of the violation. (quoting 33
U.S.C. 1365(a)(1)) (Scalia, J. concurring).
66

417. The equitable factors, in light of Congressional purposes established in the Clean
Water Act, favor an injunction here. The issuance of permanent injunctive relief to remedy the
ongoing coal ash pollution at the Gallatin Fossil Plant is consistent with longstanding Clean
Water Act precedent.
418. Therefore, the Court hereby orders injunctive relief in the form of excavation and
removal to stop the ongoing violations of the CWA and TVAs NPDES permit at the Gallatin
Fossil Plant.
C. Civil Penalties are Appropriate.
419. Conservation Groups have requested that the Court impose civil penalties against
TVA pursuant to CWA Section 309(d). That section provides that violators of the Clean Water
Act shall be subject to a civil penalty. 33 U.S.C. 1319(d).
420. The Act further provides that, In determining the amount of a civil penalty the
court shall consider the seriousness of the violation or violations, the economic benefit (if any)
resulting from the violation, any history of such violations, any good-faith efforts to comply with
the applicable requirements, the economic impact of the penalty on the violator, and such other
matters as justice may require. Id.
421. Penalties may be assessed against TVA up to $37,500 per violation per day
pursuant to sections 309(d) and 505(a) of the CWA, 33 U.S.C. 1319(d), 1365(a), and the civil
penalty adjustments since, e.g., 74 Fed. Reg. 626 (Jan. 2009).
422. The U.S. Environmental Protection Agency recently increased the maximum civil
monetary penalties from $37,500 per day per Clean Water Act violation. See 40 C.F.R. 19.2
(Effective Date); 40 C.F.R. 19.4 (Statutory civil penalties, as adjusted for inflation, and
67

tables). Specifically, violations that occur after November 2, 2015, where the penalties are
assessed on or after January 15, 2017 are now $52,414 per day per violation. Id.
423. As set forth in the findings above, TVAs violations of the Clean Water Act are
serious and have a long history. TVA has long known of the violations but has undertaken no
efforts to stop the violations and comply with its NPDES Permit and the Clean Water Act.
Moreover, TVA has long benefitted economically from its noncompliance. For these reasons, the
Clean Water Act requires the assessment of penalties.
424. Here, the assessment of penalties for only one violation of the Clean Water Act
going back to the beginning of the commencement of the statute of limitations would be almost
$70 million; five violations would be $350 million. Because TVA has five violations, the Court
fines TVA in the amount of $350 million.
425. These penalties will be paid back into the U.S. Treasury.
426. 33 U.S.C. 1365(d) provides that reasonable attorneys fees may be awarded to
any prevailing or substantially prevailing party. In the context of 1365(d), a plaintiff is said
to have prevailed if he has succeeded on any significant issue in the litigation, which achieves
some of the benefits sought in bringing suit. See Metro. Pittsburgh Crusade for Voters v. City of
Pittsburgh, 964 F.2d 244, 250 (3rd Cir. 1992); Gingras v. Lloyd, 740 F.2d 210, 212 (2nd Cir.
1984) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
427. The Court finds that Conservation Groups are the prevailing party and that they
are entitled to attorneys fees pursuant to 33 U.S.C. 1365(d). Conservation Groups have thirty
(30) days from the entrance of this order to file a petition as to the appropriate amount of fees
and costs, with TVA filing a response within 10 days of the filing of the fee petition.9
9
Factors to be considered in the attorney fee award include: (1) the time and labor required by a given case; (2) the
novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the
68

CONCLUSION
428. The Court finds that the Conservation Groups have established Clean Water Act
violations in five ways.
429. First, the Conservation Groups have established by a preponderance of evidence
that TVA stores coal ash in the groundwater and is releasing coal ash contamination from the Ash
Pond Complex into groundwater and surface water, in violation of Section II.C.a. of its NPDES
Permit, the Removed Substances provision, and therefore, the Clean Water Act.
430. Second, Conservation Groups have established by a preponderance of evidence
that TVA is in violation of Section II.C.3.b of its NPDES Permit provision prohibiting sanitary
sewage overflows by releasing coal ash contamination into groundwater and surface water from
the Ash Pond Complex.
431. Third, TVA has violated Section II.A.4.a of its NPDES Permit requiring proper
operation and maintenance of the Ash Pond Complex.
432. Fourth, the Court finds that Conservation Groups have established by a
preponderance of evidence that TVA is discharging coal ash contamination into the Cumberland
River from the Ash Pond Complex through conduit flows, and through groundwater that is
hydrologically connected to the Cumberland River via sinkholes, fissures, and other conducts in
violation of the Clean Water Act, separate and apart from violations of its NPDES Permit.
preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Reed v.
Rhodes, 179 F.3d 453, 472 n.3 (6th Cir. 1999).
69

433. Fifth, Conservation Groups have established by a preponderance of the evidence
that TVA is discharging coal ash contamination from the NRS into the surface water and
hydrologically connected groundwater in violation of the Clean Water Act.
434. The Court finds that in order to come into compliance with its NPDES Permit, in
particular the Removed Substances Provision of the Permit, and the Clean Water Act, TVA will
be required excavate and remove the coal ash from the disposal areas. The Court further finds
that TVA is engaged in continuing coal ash contamination that would not be remedied by
installation of a cap over the coal ash disposal units because, among other things, coal ash is in
contact with groundwater and is below the elevation of the water table, where it will remain and
will continue to leach pollutants into the groundwater and surface waters if a cap is installed.
Thus, leaving the coal ash in place will not stop the pollution, as required by the Act. Therefore,
the Court orders TVA to excavate the coal ash from the disposal areas.
435. Finally, the Court orders that attorneys fees and costs are appropriate, and that the
Conservation Groups will have 30 days to submit a fee petition to the court setting out the
amount and basis for such fees and costs. TVA will have 10 days to respond.
Respectfully Submitted,
s/ Elizabeth A. Alexander
Elizabeth A. Alexander, BPR No.
19273
Delta Anne Davis, BPR No. 010211
Anne E. Passino, BPR No. 027456
SOUTHERN ENVIRONMENTAL
LAW CENTER
2 Victory Avenue, Suite 500
Nashville, TN 37213
Telephone: (615) 921-9470
Facsimile: (615) 921-8011
balexander@selctn.org
adavis@selctn.org
apassino@selctn.org
70

Jonathan M. Gendzier, pro hac vice
SOUTHERN ENVIRONMENTAL
LAW CENTER
201 West Main St.
Suite 14
Charlottesville, VA 22902-5065
jgendzier@selcva.org
Attorneys for Tennessee Scenic

Rivers Association
Shelby R.B. Ward (BPR No.

030394)
Tennessee Clean Water Network
P.O. Box 1521
Knoxville, TB 37901
Telephone: (865) 522-7007
Fax: (865) 525-4988
Shelby@tcwn.org
Attorney for Tennessee Clean Water

Network
71

CERTIFICATE OF SERVICE
I hereby certify that the foregoing Post-Trial Findings of Fact and Conclusions of Law
was filed electronically on April 14, 2017, through the Courts Electronic Filing System. Notice
of this filing will be sent by operation of the Courts electronic filing system to all parties
indicated on the electronic filing receipt. Parties may access this filing through the Courts
electronic filing system.
David D. Ayliffe Lane E. McCarty

Tennessee Valley Authority Tennessee Valley Authority
General Counsel's Office General Counsel's Office
400 W Summitt Hill Drive 400 W Summitt Hill Drive
Knoxville, TN 37919 Knoxville, TN 37919
(865) 632-8964 (865) 632-2396
(865) 632-6718 (fax) (865) 632-6718 (fax)
ddayliffe@tva.gov lemccarty@tva.gov
James S. Chase
Tennessee Valley Authority
General Counsel's Office
400 W Summitt Hill Drive
Knoxville, TN 37919
(865) 632-4239
(865) 632-3195 (fax)
jschase@tva.gov
Attorneys for Tennessee Valley Authority
/s Elizabeth A. Alexander
ELIZABETH A. ALEXANDER
72

Conservation Groups Post Trial Findings of Fact and Conclusions of Law

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Conservation Groups Post Trial Findings of Fact and Conclusions of Law

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

TENNESSEE CLEAN WATER NETWORK )

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 1 of 78 PageID #: 9893

I. THE GALLATIN FOSSIL PLANT IS A COAL-FIRED POWER PLANT

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 2 of 78 PageID #: 9894

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 3 of 78 PageID #: 9895

Amoco Prod. Co. v. Village of Gambell,

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 4 of 78 PageID #: 9896

33 U.S.C. 1251(a) ...................................................................................................................... 37

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 5 of 78 PageID #: 9897

NPDES Permit I.A.c. ..................................................................................................... 39, 41, 42

74 Fed. Reg. 626 (Jan. 2009) .................................................................................................. 57, 67

40 C.F.R Part 423 Appendix A ..................................................................................................... 46

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 6 of 78 PageID #: 9898

I. THE GALLATIN FOSSIL PLANT IS A COAL-FIRED POWER PLANT

PageID 4740, 6).

and 246. (J. Ex. 278 at 1).

Fossil Plant. (Tr. v. 4, 129:22-24).

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 7 of 78 PageID #: 9899

downstream from the Plant. (Tr. v. 2, 98:7-12).

on three sides by Old Hickory Lake/the Cumberland River. (Tr. v. 1, 34:14-16).

cubic feet per day. (Tr. v. 4, 54:13-16; 71:5-7).

Cumberland River. (J. Ex. 59 at iv).

Cumberland River. (Tr. v. 3, 25:16-26:1).

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 8 of 78 PageID #: 9900

(Tr. v. 1, 41:16-24; J. Ex. 59 at TVGF_004759; J. Ex. 52 at 12; J. Ex. 44 at 34).

II. FOR DECADES, TVA HAS SLUICED COAL ASH WASTEWATER TO

A. The Non-Registered Site.

Non-Registered Site or NRS. (J. Ex. 278, Page ID 8325, at 7).

earth and ash. (J. Ex. 278 at 11).

of coal ash waste. (J. Ex. 278 at 7).

the NRS. (Tr. v. 1, 170:18-24).

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 9 of 78 PageID #: 9901

26. There is no National Pollution Discharge Elimination System (NPDES) permit

for discharges of pollution from the Non-Registered Site. (Tr. v. 2, 57:17-18).

levels of contaminants in the surface water. (Tr. v. 2, 83:9-84:7).

from about 1956 to 1970.

B. The Ash Pond Complex

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 10 of 78 PageID #: 9902

Ponds B, C, and D. (J. Ex. 278 at 14; J. Ex. 279).

then to Stilling Pond C, and finally to Stilling Pond D. (Dkt. 16 at 102).

River through Outfall 001. (J. Ex. 278 at 16).

(Tr. v. 2, 38:9-17; J. Ex. 136).

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 11 of 78 PageID #: 9903

groundwater. (Tr. v. 1, 170:4-7; 63:3-7).

46. Conductivity is an indication of mineral or pollutant content of the water, and

discharge. (Tr. v. 2, 83:23-84:12).

forth below. (Tr. v. 2 at 83:9-84:7).

engineered and designed to receive and store coal ash waste.

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 12 of 78 PageID #: 9904

49. Mr. Mark Quarles, an expert geologist testifying on behalf of Conservation

Groups, prepared a conceptual geologic, hydrogeologic, and waste management cross-sectional

model for the NRS. (Tr. v. 1, 127:5-17; J. Ex. 142).

through groundwater. (Tr. v. 1, 158:12-17; J. Ex. 59).1

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 13 of 78 PageID #: 9905

length along the NRS shoreline. (Tr. v. 1, 163:9-14).

saturated with groundwater. (Tr. v. 4, 55:1-56:3)

AECOM. (Tr. v. 4 at 156:21 157:24).

conducted at the site. (Tr. v. 4 at 158:2-7).

Kutschke, and Elizabeth Perry. (Tr. v. 4 at 157:11-17).

Management, attended on behalf of TDEC. (Tr. v. 4, 155:24-156:2).

impoundments since February 2016. (Tr. v. 4, 156:18-157:24).

Case 3:15-cv-00424 Document 245 Filed 04/14/17 Page 14 of 78 PageID #: 9906