18 states, coal group, US Chamber want ash order overturned

Eighteen states, the U.S. Chamber of Commerce, national coal industry interests and more than a dozen other groups are urging an appeals court to overturn a coal ash cleanup order at a federal utility's Tennessee plant, contending the decision will have wide-reaching, expensive consequences.

In a 6th U.S. Circuit Court of Appeals brief this week, the states argued that the order at the Tennessee Valley Authority's Gallatin Fossil Plant would broadly expand federal oversight into groundwater pollution historically regulated by states. More citizen lawsuits will almost certainly be filed and they will require coal ash cleanups elsewhere, costing utility ratepayers tens of billions of dollars, attorneys for the states wrote.

"Reasonable minds can differ among stakeholders as to the most prudent long-term plans for these impoundments, and under cooperative federalism every stakeholder has an opportunity in the process to voice those concerns," the court filing says. "If upheld, customers across the Circuit will be paying for the preference of those citizens who have strong opinions regarding environmental issues — not what the most reasonable outcome should be."

In August, a judge ordered coal ash to be excavated and removed at Gallatin, about 40 miles (65 kilometers) from Nashville. He cited Clean Water Act violations of pollutants leaking into the Cumberland River but said there's scant evidence of harm done by the pollution so far.

The federal utility says it's taking steps to follow the court's cleanup requirement, even as it pushes to get the order struck down on appeal.

The uproar by the group of other largely Republican states stands in contrast to Tennessee, where environmental regulators have their own lawsuit pending against the Tennessee Valley Authority over pollution at Gallatin. Tennessee environmental regulators also say the Gallatin cleanup shouldn't cost ratepayers any more money or take as long as the nation's largest public utility has estimated.

TVA initially said the project would cost $2 billion. Newer estimates factoring in an onsite landfill range below $1 billion. The utility's timeline says it will take 24 years to move the ash to an onsite landfill.

The utility has contended that capping the waste where it sits would be less expensive and avoid a possible larger spill from moving the ash. But capping the ash isn't an option under the court order.

Tennessee environmental regulators say they are exploring the idea of digging up and dumping ash into a lined landfill onsite at the Gallatin plant. They have cited concerns that the coal ash pond is susceptible to sinkholes and currently leaking heavy metals into the groundwater.

The states that filed a legal brief are Alabama, Kentucky, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, Wyoming and the Mississippi Department of Environmental Quality.

Tennessee Department of Environment and Conservation spokesman Eric Ward declined to comment on opposition from the other states and groups, citing the ongoing legal case.

Attorney Beth Alexander of the Southern Environmental Law Center, which is representing one of the environmental groups that sued TVA over the Tennessee site, said "it's extremely disappointing that other states would challenge this decision, when our own State of Tennessee has stated that it favors excavation at Gallatin."

In another legal brief, the National Mining Association, the Edison Electric Institute and the Utility Sold Waste Activities Group said the decision upends federal rules addressing groundwater contamination at coal ash impoundments.

A third, U.S. Chamber-led brief says permitting would have to extend to millions of small sources, including 22.2 million home septic systems. That could conservatively cost the public billions of dollars more, the court filing states.

Joining the brief are national groups for manufacturers, iron and steel, power providers and the chemical industry, among other state groups.