Arsenic in water from coal ash at center of TVA dispute

John Kammeyer compares the environmental pollutants in a coal ash pond to the minerals in a bottle of vitamins.

Photocopied and enlarged, the list of supplements is the first evidence he presents to show that concerns are overblown about the Gallatin Fossil Plant contaminating the source of drinking water for almost 1 million people. As the engineer in charge of coal combustion products for the Tennessee Valley Authority, he speaks confidently and assertively even when talking about arsenic.

Arsenic is not a vitamin supplement, but it is produced by coal-fired power plants and found in the resulting waste. Coal ash is that byproduct of burning coal to produce electricity. It contains mercury, arsenic and other pollutants harmful to people and the environment when found in high concentrations. For years, many utilities, including TVA, have stored the material as a wet sludge in unlined storage ponds.

Kammeyer says the amount of arsenic discharged at Gallatin is too small to matter, that the ponds storing coal ash waste aren't leaking and that they withstood the 2010 flood without any problems. But TVA memos, other government records and independent tests contradict his statements.

•A sinkhole developed near one of the Gallatin pond's dikes during May 1 and 2, 2010, when over 13.5 inches of rain fell at the plant, according to a TVA inspection report. A storage pond overflowed. A report completed two years later on behalf of the U.S. Environmental Protection Agency flagged dikes at two of the Gallatin ash ponds as items of "concern." The EPA mandated that the dikes be stabilized and spillways be improved to prevent water from overflowing the dikes.

•Four sediment samples recently collected near the shoreline of the Cumberland River and the plant site all had arsenic levels higher than EPA guidelines — one almost three times above the threshold, according to testing done on behalf of the Southern Environmental Law Center.

•Wet coal ash water is seeping from the ponds, according to the Tennessee Department of Environment and Conservation. TDEC sued TVA after environmental groups filed notice that they intended to take legal action in federal court. The state agency, however, filed its suit in Davidson County Chancery Court, contending TVA was violating state laws. The Southern Environmental Law Center joined that suit on behalf of two other environmental groups.

•TVA's Gallatin Fossil Plant, the closest coal-fired power plant to Nashville, and the Cumberland Fossil Plant west of Clarksville both scored the most severe rating — a Phase III — for exceeding groundwater protection standards during 2009, according to a TVA Office of Inspector General report. The Cumberland plant exceeded levels of three substances, including arsenic. Gallatin had levels of beryllium, cadmium, nickel and vanadium that exceeded acceptable levels. Even so, TDEC never issued TVA a notice of violation, the Office of Inspector General determined.

•Nor has the state agency issued any notices of violation concerning the Gallatin plant since that OIG report, according to a review of communications between it and TVA obtained by The Tennessean through an open records request. Eric Ward, a TDEC spokesperson, outlined in an email the regulatory actions on the plant and noted that it had repeatedly been deemed in compliance. And he pointed out that water quality standards for the Cumberland River are being met.

TVA has added monitoring wells, stabilized the dikes at Gallatin and regularly submits water quality reports to the state, Kammeyer said. Biologists monitor aquatic life in the river for TVA, he said, and no problems have been noted. Nor have contaminants from the plant been reported in drinking water systems. An attorney for TVA described the allegations made by the Southern Environmental Law Center as "legally and factually baseless."

TVA is in the process of phasing out the wet coal ash ponds and replacing them with a $35 million lined landfill to store the material in a dry form — a method environmental groups agree is far safer.

New landfill underway

The new landfill is part of more than $1 billion in work TVA has underway at the Gallatin plant to meet new air pollution requirements. New massive scrubbers will reduce the harmful pollutants coming out of the plant's smokestacks. The resulting coal ash, though stored dry, will have higher levels of pollutants. It will go to the landfill, but the wet ash in the existing ponds will stay where it is. The ponds will be filled in and capped off.

Environmental groups worry about the new landfill because it will be on the same karst geology — rock formations beneath the soil with holes similar to Swiss cheese — which they contend has allowed sink holes to develop in the coal ash ponds and toxins to leach.

Kammeyer said protective layers will keep coal ash within the confines of the new landfill. The utility is excavating karst rock, putting down a thick layer of clay and then spreading out a plastic liner 60 times stronger than a heavy-duty garbage bag. At its top, the landfill will be capped off with more protective covering.

"One of the basic missions we have is environmental stewardship," Kammeyer said. "We support economic development in a lot of ways, but we also have to protect the river."

But public trust in TVA and other utility companies in how they handle coal ash has faltered in recent years because of incidents like the 2008 spill at TVA's Kingston Fossil Plant and the 2014 spill at Duke Energy's Dan River plant in North Carolina. The prior incident cost TVA $1.2 billion to clean up. The latest one led to criminal indictments handed down last month against Duke Energy.

Coal ash storage is a bigger problem than just dealing with the aftermath from spills, said Anne Davis, managing attorney for the Southern Environmental Law Center in Nashville.

"Coal ash waste is the second largest waste stream in the country after municipal waste," Davis said. "We are dealing with a whole lot of it. There is a coal ash pond on virtually every major river in the South. Those ash bonds are all unlined next to the river with coal ash leaching toxic substances."

While people may be aware about the potential for earthen dams collapsing, they are just realizing the risks from toxic substances leaking into ground water or rivers like the Cumberland, she said.

Ronnie Howard of Lebanon has lost trust. An avid fisherman, he doesn't feel comfortable eating catfish, which are bottom eaters, caught near the plant, a popular fishing spot.

"I can remember growing up as a kid we would haul tub loads of catfish out of that place and eat them," he said.

The lawsuit allegations

Allegations in the lawsuit filed by the Southern Environmental Law Center that TVA has discharged over 7,000 pounds of arsenic into the river are unfounded, according to Kammeyer.

"It's really misleading," he said. "When they say we discharge over 7,000 pounds of arsenic in a year, I can't find any data to support that. But on the other hand, the limit is like 35,000 and we're actually at 820. It's an odd claim that's very misleading."

He points out that substances besides arsenic mentioned in the lawsuit are naturally occurring and often included as vitamin supplements.

Beth Alexander, senior attorney with the Southern Environmental Law Center, said, "You don't want to take unlimited vitamins just like you don't want to put unlimited amounts of these toxins into water. They become toxic at a certain point."

Kammeyer does admit to a single violation at the coal ash ponds — failed readings in one of about 30 monitoring wells — well number 19. TVA is putting more monitoring wells around it to better pinpoint the problem. The well is near the shoreline on an abandoned coal ash pond now completely filled in and covered with vegetation.

"Until we find out what the problem is I don't have a solution," Kammeyer said. "We'll identify what's driving the (high monitoring levels). Once we identify that, then we got to come back to TDEC, show them what we think is the right plan and get their approval."

The existing coal ash disposal system covers 476 total acres consisting of a network of five ponds located within a peninsula. The distance between the Cumberland River and the dams that hold back the coal ash water is about the length of a basketball court.

Reach Tom Wilemon at 615-726-5961 and on Twitter @TomWilemon.

Uneasy partners in court

The Tennessee Department of Environment and Conservation and environmental groups are uneasy partners in a lawsuit against TVA.

Attorneys with Southern Environmental Law Center first filed notice with TVA that they intended to sue the agency under the federal Clean Water Act on behalf of Tennessee Clean Water Network and Tennessee Scenic Rivers Association.

But before that lawsuit could go forward, the Tennessee Department of Environment and Conservation stepped in and filed a lawsuit against TVA in Davidson County Chancery Court. TVA officials prefer to work with the state agency than face off with the environmental groups in federal court.

Attorneys for TVA told officials with TDEC they would rather be regulated by the state agency than a federal judge, said Kelly Brockman, a TDEC spokesperson.

"Honestly, TDEC is in a better position to make a decision concerning environmental remediation and compliance than if it were to go to a federal judge," Brockman said.

TVA spokesperson Scott Brooks said his agency did note its preference to face litigation by the state because any resolution would still have to meet both federal and state regulations. However, he said, TVA did not ask TDEC to sue.

After the state sued, lawyers with the Southern Environmental Law Center filed a motion to intervene, noting in court papers that TDEC had "declined to initiate corrective measures against TVA on its own accord, prior to bringing the instant lawsuit."

Tennessee Assistant Attorney General Emily Vann responded. She wrote in court papers that while the state had no opposition to the environmental organizations intervening, their assertions were outside what had been agreed upon. And she said the groups don't have standing to independently pursue claims against TVA in state court.

Eric Ward, a spokesperson for TDEC, said the agency has and continues to closely monitor TVA.

"We treat TVA just like we treat all other regulated entities — with as much aggressiveness as we need to achieve compliance," Ward said. "Some people may immediately throw the flag if they don't see notice of violations and hundreds of thousands of dollars worth of fines, but we know our oversight of TVA and other regulated entities is conducted in the best interests of our environment and Tennesseans."

— Tom Wilemon, twilemon@tennessean.com