Tennessee regulators are questioning the Tennessee Valley Authority’s plan to leave five million tons of coal ash in an unlined pit that might be leaking arsenic and other toxins into groundwater in Anderson County.

Regulators with the Tennessee Department of Environment and Conservation are also raising concerns about TVA’s plan to build a heavy-duty water basin on top of a portion of that coal ash pit at the utility’s Bull Run coal-fired power plant, newly obtained records show.

But those regulators are powerless to stop it — for now — and TVA won’t be required until August to reveal to the public what its monitoring of groundwater contamination from that unlined pit shows, an ongoing Knoxville News Sentinel investigation shows.

“This project does not require TDEC approval because it is not a final decision on closure,” TVA spokesman Scott Brooks said.

TDEC could later, under a separate 2015 order, try to force TVA to remove the basin, clean up the coal ash and store it somewhere else. For now, though, the agency can only offer “comments” on TVA’s plan.

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The Knoxville News Sentinel has obtained, reviewed and analyzed all records related to TVA’s plan for the unlined Bull Run pit, including TDEC’s comments, reports by a technical expert enlisted by environmental groups to review the plan and comments submitted by the Southern Environmental Law Center on behalf of those groups.

The news organization’s review — part of an ongoing probe into TVA’s handling of coal ash and treatment of coal ash workers — reveals the following:

TVA: Too risky to move ash

TVA earlier this year announced it is closing Bull Run by 2023. The utility cited a drop in demand for its electricity and a desire to move to cleaner forms of energy, such as solar power.

So far, TVA has not given the public or TDEC any details on what it plans to do with the plant, located about 15 miles northwest of Knoxville in the heart of the Claxton community, or the tons of coal ash and coal ash wastewater currently stored there and continuing to be produced there daily. Coal ash is the byproduct of burning coal to produce electricity.

The agency also announced it was planning to leave nearly 5 million tons of coal ash stored in an unlined pit at the plant — labeled the “main ash impoundment” or “pond” in TVA reports — that borders both Bull Run Creek and the Clinch River.

TVA said in a report made public in April that it plans to drain as much water as possible from the pit, pack down the coal ash, put a liner on top to keep water out and put a cover over the liner to seal it up. The utility said it also would build a wastewater treatment basin on top of 13 acres of the nearly 40-acre pit.

The utility contends it’s too risky and too costly to clean out the coal ash and store it elsewhere.

“During early excavation activities … working with this wet, fine-grained (coal ash) became a safety concern, due to the material’s loss of strength when saturated, and subsequent detrimental effect on local stability,” TVA’s report stated.

“Excavation of the (coal ash pit) under these conditions is difficult and time consuming, which can cause construction schedule delays, increasing worker exposure to unsafe conditions,” the report stated. “Specialty amphibious equipment with lower than expected production rates is necessary to ensure operator safety.”

Reports: Arsenic, toxins leaking

TVA says its own testing showed unsafe levels of arsenic — as much as three times higher than safe public drinking water standards — and barium in groundwater monitoring wells near the coal ash pit dating back as far as 2000 and through at least 2014.

The monitoring wells capture samples of groundwater flowing beneath and through the unlined pit and into Bull Run Creek and the Clinch River.

The West Knoxville Utility District draws water from the Clinch River less than a quarter-mile downstream from the coal ash pit, records show. The Hallsdale-Powell Utility District draws water from Bull Run Creek roughly two miles upstream from it, records show.

There are at least 17 private wells within a mile of the coal ash pit, according to TVA.

The utility isn’t required under either federal or state regulations to make public the latest groundwater testing results for the unlined pit until August, and it doesn’t disclose any of that information in its April plan.

But TVA insists its plan to leave the coal ash in place isn’t a threat to public drinking water because the utility districts treat the water to ensure it meets safety standards. TVA says its threat to private water supplies is minimal.

“Most residences located northeast and northwest of the (Bull Run) reservation rely on public water provided by the Clinton Utility Board,” the report stated. “None of the residential wells are located downgradient (downstream) of the proposed facility.”

TDEC already has ordered TVA to test private wells near the plant for contamination. TVA says it’s in the process of doing that but doesn’t reveal any details in the April report.

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TVA insists its plans to drain standing water in the pond and prevent more water from coming in will reduce groundwater contamination over time.

“The dewatering and subsequent lack of rainfall infiltration into the (coal ash) materials in the impoundment would provide an immediate reduction in the potential downward influx of leachate moving from the impoundment,” TVA wrote in its report.

Expert: Contamination getting worse

Environmental groups, including the Tennessee Chapter Sierra Club, enlisted the Southern Environmental Law Center to examine the plan. The law center, in turn, enlisted Mark Quarles, an environmental scientist who runs a consulting firm in Nashville, to study TVA reports and records.

Quarles contends a portion of the unlined pit and the coal ash inside it is submerged in as much as two feet of groundwater and is leaching toxins, including arsenic, directly into the groundwater. That contaminated groundwater, he concludes, is flowing into Bull Run Creek and the Clinch River.

Quarles says TVA’s own monitoring reports for nearby coal ash disposal areas at Bull Run, including TVA’s newest “dry stack” coal ash landfill, reveal signs of groundwater contamination, too.

“There is documented groundwater contamination at all current and past disposal areas where TVA has produced monitoring results,” Quarles wrote in a report obtained by the Knoxville News Sentinel.

And, he says, it’s getting worse.

“Groundwater monitoring at the Dry Fly Ash Stack years ago in 2008 also showed substantial contamination above regulatory standards (for) … sulfate, total dissolved solids and boron in downgradient monitoring wells,” Quarles wrote. “More recently, in August 2014, as an example, that trend of contamination has gotten worse.”

TVA says it’s still studying the long-term threat of contamination to groundwater and surface water at all its Bull Run coal ash storage facilities, including the “main ash pond” TVA now wants to close and cap.

That study was ordered by TDEC four years ago. So far, the utility isn’t elaborating on the status of that study or when the results will be made public.

Quarles says a 2010 report prepared by Stantec, a TVA-paid consultant, reveals the unlined pit is bounded by nothing more than coal ash and clay, is “unstable” and could rupture just like the dike that failed and spilled 7.3 million tons of coal ash from an unlined pit at TVA’s Kingston Fossil Plant in December 2008.

“Given that a public drinking water intake for the West Knoxville Utility District is a mere 0.25-mile downstream from the Plant and along the same side of the River, and the Hallsdale-Powell Utility District is 2 miles upstream on Bull Run Creek, this determination of no stability risk (by TVA) is alarming,” Quarles wrote.

“Ash-related contamination flowed downstream and upstream during the 2008 collapse of the TVA surface impoundment at Kingston,” he wrote.

Lawyer: TVA's plan unsafe

The Southern Environmental Law Center and the environmental groups it represents says Quarles’ analysis is proof of its position that TVA should remove all coal ash from the unlined pit, clean up contamination and build its water basin elsewhere.

“Coal ash is submerged in and contaminating groundwater in and under the Main Ash Impoundment, and the contaminated groundwater is flowing into the nearby surface waters,” wrote Amanda Garcia of the law center in comments on the plan.

Garcia also says in her comments that constructing a water basin on top of the coal ash pit could make it more difficult in the future to correct problems if they arise. She criticizes TVA's focus on worker safety as a factor driving its plans for how to handle coal ash, saying it is TVA's abbreviated construction schedule that is driving its plans and that the coal ash could be removed safely with more time.

“TVA must take the time to construct a safe, functional process water basin in an appropriate location and to safely close the Main Ash Impoundment in a manner that complies with the federal Coal Ash Rule while also protecting public health and our waterways from TVA’s coal ash pollution,” she wrote.

TDEC asking questions

TDEC isn’t doing any independent testing or analysis of TVA’s plan to leave the coal ash in place and build a water basin on top of a portion of the unlined pit, said spokeswoman Kim Schofinski.

A Knoxville News Sentinel investigation of the regulatory regime under which TVA operates shows TVA controls and pays for all the science upon which its plan is based, including testing methods, sampling, analysis, mathematical formulas and geologic studies.

But TDEC is questioning TVA’s plan in the wake of Quarles’ analysis and the environmental groups’ comments on it.

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The agency earlier this month sent TVA a list of comments and questions TDEC wants TVA to answer before it finalizes plans to leave its coal ash in place. The Knoxville News Sentinel obtained those comments via a public records request at the end of May.

Kendra Abkowitz, an assistant commissioner with TDEC, wrote in the comment letter that TVA appears to be ignoring Quarles’ contention that a portion of the unlined pit and the coal ash in it is submerged in groundwater.

“TVA fails to discuss that some (coal ash) material may be placed below the water table,” she wrote.

Abkowitz says if Quarles is right, TVA needs to reconsider its plan. If Quarles is wrong, she says, TVA needs to prove it before moving forward with its construction plans.

“If (coal ash) material is placed below the water table, consideration of excavation and removal activities of (the coal ash) material should be clearly considered in (TVA’s final plan),” she wrote. “If (coal ash) material is not placed below the water table, it should be explicitly stated in the final (plan).”

TDEC says TVA is not providing enough detail on how it plans to dewater the ash pit safely and keep the coal ash in it dry to prevent future contamination and doesn’t fully address in the plan current contamination issues, including the unsafe levels of arsenic showing up in nearby groundwater monitoring wells.

The agency also is questioning TVA’s plan to build a water basin on top of a portion of the pit, especially since TVA is describing the coal ash inside the pit as akin to quicksand too unstable to support regular excavation equipment.

“TDEC is concerned with the stability and feasibility of constructing a (water basin) on top of the (coal ash) materials in the Main Ash Impoundment,” Abkowitz wrote.

“Because TVA notes that de-watering and material stability are significant issues, TDEC recommends that TVA clarify in the final (plan) how, specifically, the (coal ash) material will be de-watered in place, and, further, how the (coal ash) is stable enough for construction of a (water basin) on top of it,” she wrote.

TDEC says it’s also worried TVA will use the water basin — once constructed atop the closed pit — as an excuse to keep from removing the coal ash if it is later revealed to be the source of ongoing contamination of groundwater and nearby surface waters.

“TDEC also recommends TVA further explain in the final (plan) how the interim measure (water basin) on top of the Main Ash Impoundment could feasibly be removed,” Abkowitz wrote.

TVA reviewing comments

TVA’s Brooks says the utility is reviewing comments by TDEC and the environmental groups about its plan.

“A final document that incorporates the comments is the next step,” he said. “It should be released later this year.”

A construction date for the project has not yet been set, he says.

Coal ash contains at least 26 toxins, heavy metals and radioactive isotopes, according to TVA’s own testing and Duke Energy’s Material Safety Data Sheet.

For decades, TVA wasn’t required to tell the public anything about coal ash or contamination from it. That changed after a dike on an unlined pit at TVA’s Kingston Fossil Plant in Roane County gave way a decade ago and spilled 7.3 million tons of the coal ash onto 300 acres of land and roadways and into the Clinch and Emory Rivers.

Spill put spotlight on coal ash

The spill destroyed a half dozen homes, roadways and infrastructure and remains the largest human-created environmental disaster in U.S. history — larger than the 1989 Exxon Valdez oil spill in Alaska and 2010 Deepwater Horizon oil spill in the Gulf of Mexico.

The EPA put TVA in charge of cleaning up its own mess in January 2009, within three weeks of the spill. TVA hired Jacobs Engineering Inc., a global project management contractor to help lead the cleanup.

TVA ratepayers paid more than $1.3 billion for the cleanup. Jacobs was paid more than $64 million of that total for its project management.

Since the spill, at least 40 disaster workers have died from ailments and 400 are sick from ailments they say are scientifically linked to long-term exposure to the toxins and metals in coal ash, according to a tally from court records by the Knoxville News Sentinel.

In 2013, 53 workers and their relatives filed a lawsuit in U.S. District Court in Knoxville against Jacobs, alleging the firm’s safety managers lied about the dangers of coal ash and denied them adequate protective gear such as masks, respirators and Tyvek body suits.

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The Knoxville News Sentinel launched an independent investigation of the cleanup in 2017.

Another lawsuit was filed against Jacobs in Roane County Circuit Court in March 2018 on behalf of an additional 180 workers and survivors. A third lawsuit was filed on behalf of an additional 119 workers and survivors in early May. Those remain pending.

A jury in November 2018 ruled in the U.S. District Court case that Jacobs breached its contract with TVA and its duty of care to protect the workers. The jury also ruled Jacobs’ breach was capable of causing the sicknesses claimed by the workers.

Chief U.S. District Judge Tom Varlan has ordered Jacobs to try to negotiate a settlement, noting many of the sickened workers do not have health insurance. Jacobs is trying to appeal. Varlan has refused the firm’s request for an appeal. The firm is now trying to appeal Varlan’s refusal.

The verdict means the workers can now pursue damages against Jacobs if they can prove they are sick and that Jacobs is to blame for that sickness. Jacobs is suing subcontractors under indemnity agreements built into the firm’s contract with TVA and invoking a separate indemnity agreement with TVA to recoup any damage awards and the firm’s legal bills.

Workers allege Jacobs' managers denied them more extensive protective gear, destroyed boxes full of protective dust masks and threatened to fire them if they insisted on protection. At least one worker maintains he was terminated by a TVA supervisor after his doctor ordered respiratory protection.

Jacobs and TVA maintain protective gear, including dust masks, respirators and protective coveralls, wasn’t necessary based on exposure threat level testing. The workers allege Jacobs tampered with exposure threat level testing.

Jacobs’ lead attorney, Theodore Boutrous Jr., says the firm did nothing wrong and believes the jury’s November verdict should be tossed out.

"The trial in the first phase of this case was fundamentally flawed and unfair, and it should not stand," Boutrous said. "There has been no finding of liability in these cases, and Jacobs stands by the quality of its work in assisting TVA with the management of the Kingston cleanup.”