Dive Brief:

• A federal appeals court this week concluded that the Tennessee Valley Authority (TVA) is not violating the Clean Water Act (CWA) at its unlined Gallatin coal ash storage pond near the Cumberland River, but did say the pollutants leaking into groundwater are a "major environmental problem."
• In 2017, the United States District Court for the Middle District of Tennessee ruled in favor of environmental groups and directed TVA to move the waste to lined pits — a process utility officials said could cost $2 billion.
• However, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit on Monday disagreed with the lower court and told environmental groups the proper route to challenge the contamination is through the Resource Conservation and Recovery Act (RCRA).

Dive Insight:

Coal ash and its storage continues to be a major issue, even as the power sector slowly moves away from the fuel. 

The 6th Circuit panel's decision concludes the CWA is not relevant in this case because it covers "point sources," which must be discrete and defined.

While the Tennessee Clean Water Network and Tennessee Scenic Rivers Association claim contamination is seeping through groundwater to the Cumberland River, the panel agreed with the utility that CWA coverage excludes the "migration of pollutants through groundwater" because it is too diffused.

The appellate panel said the district court got it right when it concluded that a leaking unlined ash waste pond adjacent to a river is "a major environmental problem," the 2-1 majority wrote in Monday's decision. "But the CWA is not the proper legal tool of correction."

Southern Environmental Law Center issued a statement saying the group, which represented the plaintiffs, is still deciding how to move forward.

"In a week where neighboring states around the Southeast have dealt with catastrophic floods that inundated coal ash lagoons, it’s a reminder that storing highly toxic coal ash in unlined, leaking pits next to our rivers and lakes is irresponsible," the group said in a statement.

The panel's dissenting judge, Eric Clay, issued a shark rebuke to the majority.

Clay wrote that the other two judges' decision means a polluter escapes liability under the CWA "by moving its drainage pipes a few feet from the riverbank. ... the majority is way off the rails."

Last month, TVA said it would alter its management of coal ash at a Kentucky plant, and would close two unlined storage units at its Shawnee Fossil Plant, removing water from the waste project and capping the remaining contents in place.