Outside the Law Restoring Accountability to the Valley Authority

Outside the Law Restoring Accountability to the Tennessee Valley Authority

Environmental Integrity Project December 2009 This report was made possible through a grant from Our Children’s Earth Foundation, www.ocefoundation.org

© December 2009, Environmental Integrity Project

The Environmental Integrity Project is a nonpartisan, nonprofit organization established in March of 2002 by former EPA enforcement attorneys to advocate for more effective enforcement of environmental laws. The Environmental Integrity Project has three objectives: To analyze how the failure to enforce or imple- ment environmental laws increases pollution and affects the public’s health; to hold federal and state agencies, as well as individual corporations, accountable for failing to enforce or comply with environmental laws; and to help local communities in key states obtain the protection of environmental laws. For more information about Environmental Integrity Project or for additional copies of this report, please visit: www.environmentalintegrity.org.

Cover photos: , Aerial photo of ash spill, and Ash and Water Discharge Pipe, available at TVA.gov and in the public domain under 17 U.S.C. § 105. Photo of home buried in ash from the Kingston Fossil Plant ash spill was taken by J. Miles Cary of the Knoxville News Sentinel and used with permission.

Layout: www.cuttingedgedc.com Contents

Executive Summary v Summary v Recommendations vii

Introduction 1

TVA’s Identity Crisis: Federal Corporation or Private Utility? 3 TVA’s Unique, Quasi-Federal Status 3 TV’s Shifting Legal Identity 4 TVA’s Claims of Sovereign Immunity & The Unitary Executive Theory 5 TVA’s Unique Financial Status 6 TVA’s Special Protections from Competition 7

TVA’s Environmental Footprint 9 TVA’s Coal Waste Spills 10 TVA’s Water Pollution 11 TVA’s Air Pollution 12

TVA’s Track Record of Noncompliance, Neglect, and Recalcitrance 15 TVA’s Clean Air Act Noncompliance 15 Clean Water Act Noncompliance 16 TVA Ignored Environmental Risks at Kingston 17 TVA’s Culture of Noncompliance 18

Recommendations and Conclusion 19 Restore Accountability at TVA 19 Reform and Reduce TVA’s Environmental Footprint 20 Conclusion 21

Notes 22

Appendix A. Select Coal Waste Discharges from TVA Fossil Plants 29 Figures Figure 1. Credit Rating of TVA and Eight Investor-Owned Utilities 7 Figure 2. TVA Fossil Plants 9 Figure 3. TVA Fossil Plants: CCW Surface Impoundments—Total Acres 10 Figure 4. TVA Fossil Plants—Surface Water Discharges 11

Figure 5. TVA Fossil Plants: CO2 Emissions 12 v Outside the Law Kingston Fossil Plant—Aerial View of Coal Ash Spill - - - - - In separateIn reports, found theIG 1 For example, a scathing a example, report For from that TVA bypassed thatair TVA emission controls theCumberland, andat Creek Widows BullRun coal plants, resulting in well toprogressive management behalf on envi the interest, public of TVA’s but ronmentalrecord and conduct in recent yearsmockthe vision that inspired its founding. own inspector (IG),based general TVA’s an engineerby independent review a on ownnegli ingfirm, found that TVA’s thetoKingston led gence disaster. Worse still,reported theIG that after theacci investigation wasdeliberately TVA’s dent, designedlimitto its scope,minimize the own company’s liability,any and avoid thingthat might call into questionthe coal safetyacres of 3,000 thenearly of wasteponds stillcoal in otherTVA use at plants. y - ar - - umm e S v an amount times nearly 100 However, the evidence in this reportHowever, xecuti revealsthat the Kingston spill is only thelatest and most dramatic example of environmentalmismanagement one at largest the nation’s of utilities. President eightyestablished nearly Roosevelt TVA yearsago as utility public a dedicated ment at Kingstonment Fossil Plant spilled more than 1 billion gallons toxic of coal waste— greater than the Exxon oil Valdez spill—into the and sur rounding community. spill The covered land and water with coal sludge to up and feet deep, 12 destroyed play homes, grounds, businesses, roads, waterways, and railroad tracks. Nearly year one the ago, Tennessee Authority madeValley front (TVA) page annews when 84-acre coal combustion waste (CCW or coal waste) impound E vi Outside the Law not come from the U.S. Treasury. U.S. Treasury. the from come not TVAby paid fines need any decades; in appropriations federal received not has and but TVA self-financing, completely is taxpayer— the protect to supposed are agencies federal from penalties recover lutants; pol air hazardous of pounds million 20 metals to U.S. waterways. U.S. to metals toxic of discharges total for plants 20 top nation’s the among rank plants fired TVA’s of six 11 coal- fact, In year. every waters U.S. in and like metals toxic of pounds of thousands discharge TVA’s plants coal addition, In than its competitors. its than maintenance their on less spends and the U.S., in plants coal efficient least and oldest the of some to home also is TVA waters. surface to metals toxic of es discharg for limits enforceable include TVA’s not do of most permits effluents, toxic these of minimization the least at or elimination the requires WaterAct Clean the and available are technologies treatment that determined EPAhas mental misconduct. mental environ own its for avoid responsibility to agency a“federal” as status its invokes area. TVA’sservice within competition prohibits that law federal by aided be may ­recalcitrance electricity—its of source carbon low cleaner, toward transition the making TVA is that evidence little is there ties, sions to regulatory authorities. sions to regulatory the emis theproblem orreporting fixing TVA to IGthe reports, delayedAccording emissions. over of tons illegal a thousand Treasury. U.S. the from drawn dollars tax or funds yet TVA federal receive not does court, federal in citizens by filed ment cases enforce environmental in penalties avoid to immunity” “sovereign of federal lution—over staggering amount of air and water pol water and air of amount staggering TVA year, produces Each enormous. Equally troubling, TVA repeatedly TVA repeatedly troubling, Equally TVA’s environmental footprint is is footprint TVA’senvironmental and and 6 Limitations on the ability to to ability onthe Limitations waste. coal of tons million 7 104 million tons of CO of tons 104million 5 TVA raises issues issues TVA raises 4 Unlike some utili some Unlike 3 Although Although 2 2 ; over ------the same President. same the under positions opposing take to agencies two requires it because cies agen federal between actions ment enforce discourages Administration, Reagan the during advanced theory, executive” “unitary Department’s independent litigating authority. litigating independent retains and defense its for DOJ on rely not does TVA because TVA to apply not should policy this However, law. the violating of accused agencies federal defend to duty its and prosecute to duty Department’s Justice the between conflict avoid to part in adopted was doctrine executive unitary The room. court the outside disputes resolve to agencies federal advise that 12,088) and 12,146 (No. Orders Executive earlier in roots has theory executive” tary executive” concerns. executive” tary “uni of regardless court federal in TVA against lawsuit a file to EPA invited and Washington, in control centralized of bounds the outside agency, federal unusual an be to TVA found Appeals of Court Circuit 11th the addition, ing violations of of violations ing TVA’s ongo despite so done never has environmental impact. environmental its limit TVA and reform to mendations recom detailed provides report this Finally, corporation. federal a as status its to due laws environmental with ply com to duty its avoid to TVA’sattempts documents report This laws. ronmental envi with compliance of record poor its and footprint, environmental giant TVA’s describes report This reform. for opportunity tremendous a EPAwith U.S. and House White the Congress, units in 2000. in units coal-fired TVA dozen a over at EPA by identified violations Act Air Clean the like plants, coal TVA at problems compliance longstanding despite plants TVA at laws environmental enforce to reluctant been has (DOJ) TVA is a federal utility, and presents presents and utility, federal TVAa is In addition, the Justice Department Department Justice the addition, In 7 For example, the Justice Justice the example, For environmental law. ­environmental 8 The “unitary “unitary The 10 The EPA The 9 In In - - - 11 - - - - - vii Outside the Law - - - . - New New 16 Even TVA’s own TVA’s Even 14 after the Kingston 15 . Congress can play a criti inspector general reported that TVA’s “litigation strategy seems to have prevailed transparency over and accountability,” spill. However, thespill. President has However, an opportunity internal to change TVA’s culture from the top down, starting with the appointment leader new of Board Directors. of ship to TVA’s As Decemberof 2009, President Obama named nine- three nominees to TVA’s member Board Directors. of Create a Culture of Environmental Compliance large and dirtyTVA’s environmental “footprint” is a product its of internal culture neglect of and cost-saving decisions made at the expense of the environment. Board nominees should pledge to take environmental wrongdoing. Similarly, federal legislation to allows TVA exclude competitors from its service areaand restrict access to its energy transmission system. Removing these special protections would makeTVA more competitive, result in a more energy-efficient grid, and create incentives to stay for ahead TVA of changing environmental and energy regulations. Increase Environmental Oversight cal in role reforming through TVA its oversight House authority. and The Senate Committees charged with TVA oversight multiple have hearings held regarding the Kingston spill, long- but environmenterm oversight TVA’s of tal management is needed to prevent another disaster and transform TVA into a national example envi of ronmental sustainability and clean energy production. Reform and Reduce TVA’s TVA’s Reduce and Reform Footprint: Environmental   ------The . The

13 Unlike most federal agencies, 12 TVA is from removed TVA centralized con trol in Washington, and designed by Congressto have enforcement action exercised against it exactly as they could be exercised against private utilities. Clarify and the that Justice EPA Department to Can Take TVA Court. A directive from the White clarifyingHouse, that the “unitary ex ecutive” theory does not prevent EPA and DOJ from taking enforcement ac tion against will TVA bring help TVA into compliance with federal environ mental laws and resolve environmen tal violations that have lingered for years. “unitary The executive” theory, supported by Executive Orders (No. should and 12,088) not pose No. 12,146 a roadblock and DOJ to EPA enforce environmental of ment laws at TVA facilities. does not rely on DOJ TVA for its defense and retains indepen dent litigating authority under the law. Support Legislation to Eliminate Special Protections TVA’s White House and Congress should support legislation to TVA’s remove special protections, such as immunity from penalties for environmental violations, and anti-competitive measures that keep rival utilities out itsof service longer no area. TVA relies on tax dollars or federal appro priations and therefore, should be as accountable as any other utility for its  Restore Accountability at TVA: at Accountability Restore Recommendations 19) pg. on Recommendations (Full bringTo into compliance TVA with all environmental laws and prevent another disaster like the Kingston coal ash spill, the Obama Administration and Congress should:  viii Outside the Law  transition over twenty years ago years over twenty transition this make to TVA promised future. immediate the in systems disposal dry to ponds storage wet CCW its TVA transition must Discharges. Toxic Stop and Waste Disposal Coal Wet Dry to From Switch TVA’s operations. level atevery of compliance mental greater transparency and environ and transparency greater establish belowto actions specific the the Kingston spill. Kingston the after storage dry to ponds wet CCW its convert to again promised recently that exceed federal water ­ water federal exceed that atlevels metals heavy discharge larly TVA’sregu Since plants 11 coal-fired future. near the in systems discharge dry,zero- wet to from transition will plant each which by a timeline produced not has still and plants, coal of its atall impoundments waste coal 18 Yet TVA wet owns quality quality 17 and and - -  environmental stewardship. environmental and production energy clean in leader a TVA become reform, can With criteria, with pollution controls, pollution with retrofitting than effective cost more (1955) be Plant may Fossil Sevier at John units coal-fired retiring that anticipating TVA already is sources. renewable or energy gas natural by fueled new plants power in vestments in capital TVA make can units. ing underperform most oldest, the retire simply or fleet coal-fired aging its in investments make to whether decide Energy Renewable Clean, to Coal from Transition discharges. toxic ­ and storage waste coal reduce air pollution by court order. court by pollution air reduce to (1952) Plant forced Fossil if Creek atWidows units oldest the retire also 19 TVA must eliminate its wet its TVA eliminate must . TVA must associated associated 20 and may may and - 21

- 1 Outside the Law - -

23 22 — senator barbara boxer “this disaster happened while the the while happened disaster “this of think to i shudder slept. community wall this if happened have could what parents when day, a summer on failed had shore, the on playing were children and in boats.” fishing and swimming, ­adjacent river and surrounding commu spill The nity. covered land and water with coal sludge, and destroyed homes, businesses, roads, waterways, and wildlife. will bil TVA spend $1.2 over lion to clean-up the Kingston Spill, and has already neighboring bought 145 properties. - - - uction d o electricity from coal without r In December 2008, TVA’s coalIn December com 2008, TVA’s nt erates a deterioratingof fleet coal-fired power plants that contaminate the air and water in the Tennessee River Valley and beyond. President Franklin D. Roosevelt asenvisioned a beacon TVA of hope at the the end of Great Depression, bringing affordable electricity, flood control, and economic to development the Tennessee area River Valley—an ignoredlong by private utilities. Today, is better TVA knownhowever, for its poor environmental record and the disastrous consequences producing of cut-rate ­ environmental safeguards. bustion waste (CCW or coal waste) impoundment at Kingston Fossil Plant in Tennessee spilled more than 1 bil lion gallons toxic of coal waste into the I Tennessee AuthorityThe is Valley (TVA) the of one nation’s top polluters and op Outside the Law 2 atmosphere, TVA delayed implementing TVAatmosphere, implementing delayed the into oxide nitrogen and dioxide of sulfur tons over athousand released plants TVA several coal-fired that mation spill. the before decades ment atKingston impound the fix to proposals rejected TVA that finding risks, environmental TVA’s(OIG) to critiqued attention Carolina. North in nuisance public a create to enough air the fouling were that power plants coal-fired four from pollution air TVA dangerous reduce to ordered court district afederal month, same the Meanwhile, sites. hazard” “high U.S. EPA the considers impoundments four including impoundments; waste of coal acres 3,000 TVA nearly owns environment. the into waste coal of toxic 1,009,870 gallons approximately leasing re failed, impoundment Creek Widows onthe wall earthen the at Kingston, spill the like Just Alabama. in Plant Fossil Creek Widows its from time this spill, waste coal yet another reported TVA’s own Office of Inspector General General TVA’sInspector of Office own later, TVA weeks two than Less 24 Similarly, when faced with infor with when faced Similarly, - - - a solution to the problem. the to a solution when forced by court order. court by when forced plants coal-fired antiquated its from tion pollu curbing behind, TVA lagged has laws, Act Air of new Clean ahead stay to controls pollution adopt utilities other land and waterways each year. each waterways and land air, the into pollutants of hazardous of pounds millions releasing permits, pollution air and water expired under recommendations for change. for ­recommendations TVA with provides and record tal look atTVA’sin-depth environmen an provides report This stewardship. environmental and production energy clean towards country the guide can and D. envisioned, Roosevelt Franklin President of achievement symbol the become TVA again once utility, can pollution. water related waste- combustion coal and emissions, emissions, gas greenhouse limit to regulations new environmental to adapt to TVAloom, ill-positioned is regulations environmental and energy TVA operates its coal-fired plants plants coal-fired TVA its operates It is time to reform TVA. As a federal TVA. afederal As reform to time It is 25 And while while And 26 27 As new As - - 3 Outside the Law Paradise Fossil Plant - TVA TVA . 306, 310 (1941) 32 S . U 314 s u tat l al S al tility? e, e, r u ra e d te U te ’s Uniq ’s asi-Fede A V va was formed “[f]or the purpose main of taining and operating the properties T Qu was establishedTVA as in an 1933 independent, wholly owned federal corporation under the Tennessee Valley Authority Act). (TVA Act 1933 of —pierce v. united states, tva is “a corporate entity, separate separate entity, corporate “a tva is federal the from distinct and itself.” government i r - isis: Fe isis: - 31 - r P

29 On other oc 30 tion o tion entity Cr entity ra o In 2009, TVA generated over fifty generated over In 2009, TVA rp 28 VA’s Id VA’s o

TVA acts interchangeablyTVA as a private T C percent its of electricity from coal- 11 firedplants, power and in the process, burned million 37 tons coal. of casions, demands TVA to be treated as a private utility, unencumbered by the rules typical federal agencies follow. TVA is a federalTVA utility that uses its “quasi-federal agency” status to shield itself from accountability for environ mental mishaps and noncompliance. primaryTVA’s business is electricity generation, and earned in 2009, TVA billion in from revenues $11.1 electricity sales. utility and federal When agency. conve nient, TVA arguesnient, TVA it is a federal agency, immune from lawsuit. Outside the Law 4 with the power of government but initiative of aprivate enterprise.” possessed of the flexibility and tva istva “a corporation clothed United States. United of the obligations not are which bonds issue to authority TVA with provided civil service laws, service civil suit in the Court of Federal Claims, of Federal Court the in suit TVA exempted from Congress addition, of Directors, TVA’s for provided Board independent to 1959 with federal support. federal 1959to with prior units coal-fired of its majority the TVA and built appropriations, federal velopment of TVA’s with system energy de the supported 1959,Until Congress Basins.” River Mississippi and River the Tennessee in waters flood structive de the control to and River Tennessee the in navigation improve to and ment, for agricultural and industrial develop industrial and agricultural for and defense national of the interest the in Alabama, Shoals, of Muscle vicinity the in States United the by now owned other private utility company. utility private other any like just defense its for firms law private hires and authority litigating TVA independent agencies, has federal most like of Justice, Department and General Attorney the by represented of being Instead Washington. in control centralized removed from headquarters and staff, legal identity, aseparate corporate aseparate TVA maintains the Administrative Procedures Act. Procedures Administrative the of 16 atleast provisions from exempt is and rates, electricity its for thority au ratemaking discretionary enjoys applicable to federal entities, federal to applicable otherwise requirements purchasing the Unlike most federal agencies, agencies, federal most Unlike — president 39 42 exempted TVA from the TVA the exempted from Congress also exempted exempted also Congress 40

exempted TVA exempted from franklin

d 34 41 . . 36 and and roosevelt TVA 38 37 - 33

In In

- - - 35 Plant by December 31, December by 2013,Plant 31, 2011, Fossil Creek atWidows and December by Plant Fossil Sevier John 31, December by 2010, Plant Fossil at atKingston controls pollution air install during the appeal process. appeal the during controls of pollution installation the lay de to a motion filed and decision court’s TVA the appealed avoid compliance, corporation.” of aprivate equivalent “functional the as TVA TVA’s describing with arguments, its federal status. federal its due to lawsuit TVA avoid the to sought state, the in nuisance apublic cause to enough air the fouled Plants Fossil Creek Widows Sevier, and John Kingston, Run, Bull from emissions air uncontrolled TVA sued because Carolina when North For example, status. quasi-federal its on based avoid liability to sought has ment in environmental lawsuits, environmental ment in govern federal the and states citizens, to adverse aposition taken repeatedly TVA has organizations. environmental and states citizens, by of lawsuits subject frequent itthe make non-compliance tal TVA’s environmen levels and pollution T ers. pollut gas greenhouse biggest nation’s of the TVA sued other four and recently Vermont, Wisconsin and Island, Rhode Iowa, New Jersey, New York, California, companies.” utility against...private exercised been have could they as exactly Authority Valley Tennessee the against exercised “be claims legal that it intended because Act, Claims Tort Federal TVA the from equipment year-round. equipment control TVA pollution operate that must However, the court disagreed, finding finding disagreed, However, court the lawsuit. to subject be or emissions air harmful reduce to have not should fore agency, there TVA and afederal that is arguing by defendants other the from V In addition, the states of Connecticut, of Connecticut, states the addition, In A 50 ’s S TVA attempted to distinguish itself itself distinguish to TVA attempted hi f 43 ting L 46 The court ordered TVA ordered to The court 45 The court disagreed disagreed The court egal I 48 However, to 49 dentity

47 and held and 44 and and - - - - - 5 Outside the Law ------This 65 (4th cir. 2008)

TVA hires TVA 62 67 Yet TVA is TVA Yet 61

64 In addition, has TVA 60 However, TVA has indepen TVA However, 66 For example, the For “unitary ex 63 Under the unitary executive theory, In addition, the Justice Department n.c. v. tva, 515 f.3d 344, 349

DOJ cannot sue another federal agency since both are part the of same govern ment, and such a lawsuit would conflict with DOJ’s duty to provide legal repre sentation to both federal agencies. self-financing and doesnot support its businesswith taxpayer funds or congres sional appropriations, and should be as accountable as any other utility for its environmental wrongdoing. theory has roots in earlier Executive issued and 12,088, No. Orders, 12,146 No. 30 yearsover that ago, encourage federal agencies to resolve disputes outside the courtroom. tva is “removed from the control of of control the from “removed tva is as operating branch, executive the a of equivalent functional the corporation.” private — dent litigating authority, and does not rely on DOJ for its defense. argued that should it not have to pay environmental penalties for violations theof Clean Air Act under the principles Sovereignof Immunity. (DOJ) and Environmental U.S. Protection have been Agency (EPA) reluctant to enforce environmental laws coal plants,at TVA despite longstanding Clean Air Act violations a dozen at over coal-firedTVA units, identifiedEPA by in 2000. ecutive” theory, advanced by DOJ during the Reagan Administration, discourages enforcement action between federal agencies because it requires two agen cies to take opposing positions under the same President. protections sovereign of immunity by allowing to ‘sue-and-be-sued’ TVA under Act. the TVA - - - - - 51 54

TVA TVA For ex For 58 57 55 y r eign eign r e v even though even o ) by 2012. 59 y 56 r f S In addition, in a recent he Unita he 53 heo During the course the of 52 e T v laims o ti nity & T u u ’s C ’s A TVA is recalcitrantTVA it comes when to Environmental organizations also V xec mm E I litigation, installed TVA some air pollu tion control equipment, continues but to fightenvironmental groups because it isfaced with the possible installation additionalof emission controls on its coal-fired units. adopting pollution controls for its aging fossil invest plants, and, most TVA’s of ments in energy renewable havebeen forced by the Energy Policy Act 2005, of which requires a minimum investment in sources renewable by 2013. sued TVA allegingsued TVA did that not TVA comply with the Clean Air Act’s New Source Review requirements at . TVA has repeatedlyTVA invoked its status as a federal agency to responsibility avoid for its own environmental misconduct. When sued for violating environmental haslaws, argued TVA that it is immune from lawsuit under the principles of Sovereign Immunity, T ing to reduce harmful air emissions. that TVA wasthat subject TVA to lawsuit by states and environmental organizations seek is not currently obligated under any Renewable Energy Portfolio Standard to providepercentagea the of power sells it from sources, renewable it might but be required to do so in the future. lations at TVA’s Colbert Fossil lations Plant, TVA at TVA’s similarly sought to liability avoid based on its federal status, was but forced to install pollution controls for opacity at the Colbert Fossil Plant nonetheless. case involving thousands opacity of vio Congress specifically the denied TVA ample, TVA recently agreed TVA ample, to purchase wind power from a South Dakota wind TVA’s of orfarm 1.6% to 450 MW, (up 28,000 MW capacity Outside the Law 6

opportunity to contest the order within administrative order without the prior “executive branch agencies may not sue ordered by another to comply with an one another, nor may one agency be — — F . . H enry enry theory was theory designed to protect: the federal agencies executive the unitary entity,that itargued is an atypical unlike district court.” district in action enforcement an bringing by dispute atypical as case this treat EPA why thereafter not wonder the did one must holding, this with Faced tion. ac enforcement ajudicial in defendant EPA’s TVA a be not that could contention rejected decision panel first “Our stating, TVA, to apply not did executive” “unitary the that found and disagreed of Appeals for enforcement purposes.” enforcement for company energy private any itdoes as TVA “EPA treat should that clear made tion, just like any other private utility. private other any like just tion, litiga against defend to firms law private and EPA.and TVA between disputes 12,088, govern No. 12,146 Orders Executive and and theory executive” “unitary the that gued agencies on several occasions. Act, EPA never done so.Act, has Air Clean of the violations longstanding TVA for against lawsuit afederal bring EPA to to invitation Circuit’s Eleventh H bonds that are bonds notare that obligations of or sales through of is financed program the its from Unitedpower States; TVAparties: is a business separate EPA and TVA clearlyare adverse Ironically, TVA suedhas U.S. federal ar EPA DOJ 2000, and as recently As abicht, abicht, the executive branch.” 70 The Eleventh Circuit Court Court The Circuit Eleventh II , , U 71 . S The Eleventh Circuit The Circuit Eleventh . . D epartment of Justice of epartment 72 73 Despite the the Despite 74 TVA even 69 - - 68 - rating in the utility industry. rating in the utility TVA bonds being rated ‘AAA’ the highest has resultedwidespread misperception in rating is based primarily on “legislation rating is based primarily itself acknowledges that TVA’s bond high ligations of the United States. authority to issue bonds which are not ob TVAgranted Congress the independent T propriations. without ap programs congressional salesof to all fund its power-generating bond sales, and revenue electricity from at any point. He atnot point. any done has so.” initiative to own a close on his litigation this bring could President the President, at ofserve pleasure the the board EPA’s both TVA’s and Administrator TVA should it become insolvent. that the U.S. Government would back spread belief among bond rating agencies by the U.S. Government, there is a wide bonds are not supported by or backed ance with federal environmental laws. environmental federal with ance TVA mentto bring compli into actions enforce EPA necessary take DOJ and do not Orders apply to TVA,help will Executive related and executive theory unitary the that clarifying Department, House or Justice White the from rective tions were $25.1 billion. TVA’s bonds, total notes, and other obliga V As the Eleventh Circuit noted, “Since Eleventh the noted, “Since As Circuit any nongovernmental entity.” manner, and to the same extent as “process,”including in the “same subjectare mentalities to the CAA, that providing instru Federal cifically spe parties, private from differently EPA prohibits TVA CAA treating from Moreover, the violating CAA. the “any person”against courts in district sons” EPA and authorizes suit to bring and other Federal agencies as “per Act][Clean defines expressly TVAAir through powerthrough revenues by the Unitedguaranteed States, and A ’s Uniq 78 u As ofAs September 30, 2008, e Financial S 79 Although TVA

…

The CAA The CAA 81 77 Even TVA TVA uses 75 tat 80 This This 76 A di - - u - s ------7 Outside the Law wned wned O - edit edit A r A- A- A- BBB BBB BBB AAA BBB+ ’s Cr ’s - esto - r v Long Term Rating Long Term - n 93 oo l In addi 92 o. ight ­I ight o d and P d and r and E A and FERC attempted V orp 91 tanda alley Authority

ompany f T 89 90 orp. orp e 1. S e 1. ur ennessee V Company Ameren C ower C American Electric P Inc Dominion Resources Duke Energy C Entergy C C Florida Power & Light Progress Energy Inc Southern C T Fig Rating o Rating Utilities Under the isFPA, TVA not consid based solely on its underlying underlying its on solely based condition financial or business commensurate with a triple-a rating.” rating.” a triple-a with commensurate which, by themselves, may not be be not may themselves, by which, a protection that shields from TVA competition and reduces its exposure to revenue loss. tor-owned utilities. In addition, is TVA not subject to FERC’s full jurisdiction like most utilities regulated under the FPA, and FERC recently tried to force toTVA interconnect its transmission without success. ered a “public utility” like many inves to order and TVA the East Kentucky Power Cooperative to interconnect transmission systems, an effort that successfullyTVA argued violated its anti-cherrypicking provision. tion, Senators Jim Bunning and Mitch —tva office of inspector genera “tva’s credit ratings are not not are ratings credit “tva’s - - -

- - 82 83 Under 87 TheAct TVA 86 TVA can TVA prevent 88 otections otections and an amendment to the Although TVA’s bonds are Although TVA’s 85 84 ompetition pecial Pr pecial ’s S ’s A Given TVA’s potentially massive TVA’s Given To correctTo the misperception that om C om V fr financial liabilities due itsto ownership nearlyof 3,000 acres coal of waste im poundments—including four impound considersments the EPA U.S. “high hazard” sites—history environmental of mismanagement, costly environmental cleanup from two coal waste spills in the last capital year, expenditures to modernize aging coal plants to due litigation and impending environmental triple-Aregulations, rating may TVA’s be inflated. TVA alsoTVA lacks incentive to stay ahead of environmental and energy regula tions because it is shielded from com petition with other electric utilities by the Act TVA Federal Power Act (FPA). T U.S. taxpayersU.S. may ultimately bear fi nancial responsibility financial for TVA’s circumstances, Congress must clarify bondsthat will TVA not be backed by taxpayersU.S. face financial should TVA hardship. not backed by the Government, U.S. TVA is a federal entity and receives a credit rating far superior to its competitors (see Figure 1). rather “than financial its rather position.” contains an amendment known as the “fence” that shields by TVA prohibiting fromTVA contracting to sell power outside service TVA’s area. that designates TVA a federal entity” federal a TVA designatesthat the Energy Policy Act of is1992, TVA also shielded from competition by the “anti-cherrypicking provision” that prevents the Federal Energy Regulatory Commission (FERC) from ordering toTVA provide others with access to its transmission lines. others from transmitting power to customers within service TVA’s area, Outside the Law 8 tva fromtva direct competition remain in aposition similar to that of aregulated utility monopoly.” framework continues to insulate to Competitive Power Act of 2007,” of Act Power Competitive to “Access the introduced McConnell “as long the as legislative —u.s. gao (2006) gao —u.s. … it will 94 connected and energy-efficient grid. energy-efficient and connected inter- more a for allow and protections TVA’s remove anti-cherrypicking to efficient energy grid. energy efficient more asmarter, towards progress try’s coun of the rest up the holding without ­ restrict TVA no longer sources, can able energy renew to transition and grid, energy nation’s of the interconnectedness and reliability the improve to seeks States United the As regulations. energy or of environmental TVA ahead for stay to no incentive provide and competition These protections shield TVA shield from protections These access to its transmission system system transmission its to access - 95

- 9 Outside the Law Ash and Water Discharge at Kingston Fossil Plant 99 lants 5,700 7,300 7,200 8,900 9,600 9,600 12,350 metals and 14,000 10,000 20,000 20,000 When released Coal Burned Coal (tons/day) 98 int Fossil P A Fossil pr V reek contaminants “are found in e 2. T ur olbert Facility Allen Bull Run C Cumberland Gallatin John Sevier Johnsonville Kingston Paradise Shawnee Widows C Fig l Foot into hazardous water, CCW ­ ­dangerous ­ much higher concentrations in the ash compared to the coal.” a - - - CCW 96 onment r i v n million tons coal of 2008 in 46.3 ­ Although harmful air pollutants 97 VA’s E VA’s are from removed the air, the pollution is simply transferred CCW to CCW. contains including toxic pollutants such as, Chlorine, “Arsenic, , Mercury, Selenium, and ,” often these contains concentrated heavy of levels metals and other pollutants power when plants use wet and other air pollution controls to capture air pollu tion. alone—creating large amounts harm of ful air pollutants and coal combustion waste (CCW) in the process. CCW, including Gas Desulfurization Flue (FGD) wastes, is the toxic waste product created coal when is burned, and all of coal-fired 11 plants power gener TVA’s ate massive amounts CCW. of T Tennessee Authority’sThe Valley coal-fired 11 plants (TVA) create enormous amounts air of and water burnspollution. TVA millions tons of coal—of 10 Outside the Law ash ponds detrimental environmental effects.” water sources, cause fish and other “wastewater discharged from coal wildlife to die and create other … each year. each waste combustion of coal tons 7million produces arsenic as well as environmental devastation. environmental as well as humans, in illnesses severe or cancer to contribute or cause may pollutants other with even greater potential to cause cause to potential even greater with ponds and impoundments waste coal TVA larger much operates headlines, dia me grabbed Creek Widows and Kingston Fossil Plant in Alabama. its spill—this from time Widows Creek TVA Kingston, after yetreported another waste for TVA. two weeks Less than not the first orthe lastrelease ofcoal recover.fully Yet was spill the Kingston adjacent and properties waterways to waste, coal years take andfor it the will of more 1 gallons of billion than toxic microscope. consisted The spill Kingston Plant put TVA’s practices under a disposal The Fossilat waste spill coal Kingston T ronment. envi the into pollutants of toxic pounds over 59 million released 2008 in and ers, lion tons of CO tons lion For TVA over example, 100 releases mil sites. hazard” “high EPAthe considers impoundments waste coal several owns water, and surface to discharges arsenic emissions, dioxide of carbon source V can contaminatecan drinking Although the coal waste spills at spills waste coal the Although TVA is one of the nation’s top pollut TVA top nation’s one of the is A ’s C , a known human carcinogen; and and carcinogen; human , aknown oal W 101 In addition, TVA is a large TVA alarge is addition, In 2 350,000 pounds of ; over pounds 350,000 aste S aste pills — U . S . . EPA - 100 - - 10 2 - environmental damage. environmental impoundments tell a different story. adifferent tell impoundments surface CCW its from spills and seepage waters. ­ or ground into leach can ants pollut and unlined, are impoundments of TVA’s many waste addition, In coal ments—at Bull Run Fossil Plant, Colbert Colbert Plant, Fossil Run ments—at Bull impound TVA waste coal three gated personnel,” environmental trained by facilities various atthe system of this tation implemen day-to-day the and system management “waste strong of its bragged Plants. Fossil Creek Widows and Cumberland, atTVA’s Colbert, Run, Program Bull Safety Dam National the under ponds and impoundments waste coal hazard” Kingston’s coal waste disposal area. disposal waste coal Kingston’s than larger three times than more are some and Kingston, than larger are ponds and impoundments surface CCW I CCW Surf Fig In a 2007 report, U.S. EPA investi report, a2007 In U.S. EPA recently identified “high “high U.S. identified EPA recently * allCCWnowshippedoff-site mpo Widows C Gallatin Paradise TVA Facility T C Bull Run Cumberland Shawnee Johnsonville Allen Kingston John Sevier otal olbert ur 107 106 Before the Kingston spill, TVA spill, Kingston the Before u e 3. T ndments– 108 reek however, TVA’s of history ace * V A Fossil P T 104 otal A Surface Area Most of TVA’s Most (acre) lants: lants: 2,794 surface surface 420 380 140 485 330 481 132 125 121 93 87 c 103 r 105 es - 109 - -

- 11 Outside the Law -

-

and 118 117 The The 115 Water pol Water reek 116 120 tion tion ges— u r ennessee River oll Ohio River ischa r P ennessee River ennessee River reek, T T T Receiving Water Cumberland River Cumberland River ­impoundments remains to r D ate River Emory Clinch River, C Jacobs Green River, ane C Polly Branch, Holston River ate C ’s W ’s McKellar Lake, Mississippi River A In fact, TVA’s 11 coal-fired 11 power In fact, TVA’s million tons CCW of each year from its V lution from unsafe disposal CCW of is particularly dangerous, as many TVA’s of CCW impoundments are unlined plants regularly discharge toxic pollut ants and heavy metals into the nation’s located on riverbanks, near recreational waters or drinking water supplies. tion, stating, “because of concerns about groundwater contamination, is TVA moving away from wet CCW disposal techniques to dry stacking.” T water pollution comes TVA’s of Much from coal combustion waste (CCW), producesand TVA approximately 7 ­ coal-fired11 plants. power details timeline of TVA’s and financial commitment to transition all wet coal combustion waste areas to dry, zero- discharge be seen. y ace W ace r -

- - Surf 119 : 114 ento v n properly 9,853 4,170 6,750 11,100 49,051 19,270 32,269 82,578 lants 237,650 214,900 In fact,

2,765,700 111 110 Release (lbs) 2008 Total Surface Water Surface Water 2008 Total

An engineering 112 Fossil P A Fossil V

to avoid federal regula oxics Release I Release oxics 113 hallium, , and Zinc. Nickel, , Vanadium, , , Mercury, opper, reek e 4. T e 4. ur T . EPA S olbert Widows C Shawnee Kingston Paradise C Bull Run Cumberland Gallatin John Sevier TVA Facility TVA Allen Johnsonville arium, NOTE: Surface water discharges include heavy metals and toxic pollutants such as: Arsenic, B , C After decades of inaction, and largely Fig All of TVA’s 11 coal-fired 11 plants power All TVA’s of U. company hired to review the by TVA Kingston spill reported that, “similarly constructed ash gypsum (or oth and/or er byproducts) impoundments could be at risk failure of and should be ­ investigated.” eight of TVA’s 11 fossil 11 plants were builteight TVA’s of withinyears five of KingstonFossil Plant, and similar employ coal waste disposal methods. tiny of its wet coal combustion waste disposal, announced TVA it would turn its wet coal waste disposal systems into dry systems within eight years. in response to heightened public scru Fossil Plant, and Widows Creek Fossil Plant—after high aluminum, of levels iron, ,chromium, and ­selenium were reportedly discharged from CCW disposalareas. However, TVA made TVA thisHowever, same promise 21 years earlier have wet coalhave wet waste disposal systems like Kingston Fossil Plant. 12 Outside the Law tva treatedtva coal ash “like garbage at a landfillrather than treating as it potential hazard to the public and Arsenic is a known carcinogen and and carcinogen aknown is Arsenic concern. of particular are discharges TVA’s pollutants, of toxic arsenic A). Appendix (see standards Criteria Water Quality federal exceeding atlevels far waters surface into pollutants toxic discharges TVA that regularly found and plants, TVA’s from power charges 11 coal-fired into surface waters. surface into pollutants of toxic 3,433,291 pounds leased re U.S. 2008, EPA in year, and every to pollutants of toxic discharges water surface report to TVA required waters. is Fig U. Although TVA releases large amounts amounts TVA large releases Although EIP examined toxic pollutant dis pollutant toxic examined EIP (all units) Fossil Plant C Bull Run Allen John Sevier Gallatin Cumberland Widows C Shawnee Paradise Kingston Johnsonville — olbert S TVA . EPA C ur

e 5. T O ffice of of ffice reek lean A lean the environment.” V A Fossil P I nspector nspector i r M a r lants 10,856,627 97,411,264 kets D kets 13,632,507 17,531,369 5,072,807 CO 5,097,885 7,723,744 G 9,187,925 6,417,473 7,859,382 5,159,768 8,871,777 enera 1998 2 tons - - : CO ata l

121 121 2 E 126 missions — and needles” in hands and feet.” and hands in needles” and of “pins asensation and blood vessels, to damage rhythm, heart abnormal blood cells, white and of red duction pro decreased vomiting, and nausea of even low cause levels “can ingestion any other electric utility. electric other any than waters surface to arsenic more discharged TVA’s plant 2008, Kingston water, air and land. and water, air to releases arsenic total for utilities top nation’s the among rank plants coal-fired 576 tons of Carbon Dioxide (CO Dioxide 576 of Carbon tons TVA 106, 2008, In released Mercury. 209, like pollutants, air hazardous ide, and diox sulfur and oxide nitrogen gases, of greenhouse emissions considerable in results electricity generate to plants power TVA’s oncoal-fired over reliance T 2008. in Rivers Clinch and Emory the to 142,600 of arsenic lbs released Kingston ty-eight percent (98%) of which came (98%) came of which percent ty-eight V A ’s A 104,057,059 125 14,309,120 11,200,319 14,262,312 6,063,490 11,399,167 10,912,575 CO

8,380,625 7,882,576 8,929,575 5,283,091 5434,209 i 2003 r P 2 tons oll u tion 123 For example, in For in example, 1,0262,492 104,115,110 17,034,409 15,709,682 10,410,548 124 4,577,690 7,996,675 11,073,117 4,937,983 5,359,344 8,339,455 CO 8,413,715 Specifically, Specifically, 2008 2 tons 2 122 ), nine ), TVA’s - - - 13 Outside the Law - -

2 For ex For

131 134 Pollution controls Sipsey Wilderness

132 TVA coal plants TVA are located 130 and TVA continues and TVA to fighten 133 pollution controls installed, including at Allen, Colbert, Gallatin, John Sevier, Johnsonville, and Kingston Fossil Plants, ample, emissionsample, coal fromplants TVA are located near the near several Mandatory Class Federal I areas, such as national parks, wilderness areas, and international parks where visibility is special of concern. Tennessee. on TVA fossilon TVA plants would dramatically improve air quality in the Tennessee regionValley the and beyond. Yet, majority coal units TVA of SO have no Area in Alabama, Mammoth Cave NationalPark in and Kentucky, the Great Smoky Mountains National Park and the Kilmer-Slickrock Joyce Wilderness Area in Tennessee. vironmental groups seeking air emission reductions coal plants. at TVA

) x 127 - - ) that threaten 2 In addition, 128

emissions have steadily 2 129 TVA’s air emissions alsoTVA’s contribute In addition to TVA’s CarbonIn addition Dioxide to TVA’s Nitrogen Oxides and can contribute to respiratory illness, par ticularly in children and and the elderly, can aggravate existing heart and lung diseases. TVA’s CO TVA’s to visibility impairment, most notice ably in national parks like the Great MountainsSmokey National Park in and Sulfur Dioxide (SO public health and the environment. Sulfur Dioxide is harmful because it contributes to the formation acid of rain which damages trees, crops, historic buildings, and monuments; and makes soil and water acidic. emissions, coal plants TVA also produce large amounts Nitrogen of Oxides (NO ­increased the over past ten years. from TVA’s 11 coal-fired 11 plants. power from TVA’s

15 Outside the Law Home destroyed by the Kingston coal ash spill, J. Miles Cary/ Knoxville News Sentinel - -

140 .

139 The EPA found that EPA The 138 f In addition, has repeatedly TVA failed to report Clean Air Act violations at its coal failed plants. example, TVA For to report leaking equipment at three different coal plants, on three different occasions, which resulted in a thou over sand tons unreported of emissions air At CumberlandAt Fossil Plant, Paradise Fossil Plant, and Widows Creek Fossil failedPlant, TVA to report leaks from 2000, when EPA identified2000, EPA when that several coal-fired TVA of units failed meetto the Clean Air Source Act’s New Review requirements. ecuted TVA for theseecuted violations. TVA TVA modified itsTVA facilities, resulting in an emissions increase prohibited by the Clean Air has Act, pros never EPA yet eglect, eglect,

137 o rd nce ra nce, N nce, a

li 136 lcit ct p ck Reco ck a r A i lean A TVA’s own Officeof the Inspector TVA’s d Rec 135 ’s C ’s oncom n A VA’s Tra VA’s oncompliance V N T a General (OIG) reportsGeneral (OIG) the missteps by leadership, repeatedly who TVA chose short-term savings long-term over ­environmental safety. T N fossil plantsNearly all are TVA’s of compliance of out with the Clean Air isAct and aware EPA “high of priority coal 11 plants. violations” TVA’s at 8 of TVA has history a long TVA environmental of mismanagement, which resulted in, and was ultimately exposed the Kingston by, spill. Many these of violations date back to 16 Outside the Law manner so to as minimize emissions.” requires the facility to operate and care commensurate with applicable tva “didtva not exhibit astandard of regulatory requirements maintain control equipment in a leaks. the repair and report both to waiting by downtime” unit with associated costs the avoided “possibly and compliance delayed from financially benefited have TVA that may of repair,” finding time the and leaks of the of discovery time the between delay “significant the noted (ADEM) Management Environmental and Southern, and AEP, as such Progress, companies utility other than plants coal-fired its maintain to expenditures lower capital stantially problem. the fixing without operate to continued ­ its in 2008, the TVA OIG published another TVA the another OIG 2008, in published oldest in the industry and have an aver an have and industry the in oldest age age of 47 age years. age contained high pollutant levels. pollutant high contained likely and escaping to prior controls pollution any through pass not did sions emis leaked the because environment the to damaging particularly are leaks agement reportedly agreed. reportedly agement TVA which man with recommendation a of transparency,” aculture “promote TVA that recommended and Plant, Fossil Paradise and Plant Fossil Cumberland TVA’s TVA’s OIG investigated at leaks leaks. emission and ment failure The Alabama Department of Department The Alabama TVA’s coal-fired plants are some of the some of are TVA’s plants coal-fired In response to leaking equipment, equipment, leaking to response In pollution control equipment and and equipment control pollution 141 143 These types of air emission emission of air types These 146 which can lead to equip to lead can which 145 TVA sub makes 147 … However, 142 — which

ADEM - - - - 144 - all necessary data to issue new permits. new permits. issue to data necessary all have regulators that ensuring by process permitting the TVA expedite mits, can per of operating issuance hold-up state often problems compliance or issues time at Widows Creek Fossil Plant. Fossil Creek atWidows time this non-compliance, ofdent unreported inci same the nearly detailing report power plant. power TVA’s from Kingston discharges waste toxic of untreated day per lons gal one million allowing a new permit to appeal petition a filed Club, recently Sierra of the onbehalf Earthjustice, and Project Integrity Environmental the Water Clean of Act, the requirements legal the follow to failure of Tennessee’s state the to Water Due Clean Act. the by required as waters surface to pollutants TVA’s limit must of toxic tors releases regula federal and State health. public and quality water protect to permits TVA’sin limits NPDES effluent place to failed regulators pollutants, of toxic levels high discharge TVA Plants Fossil that showing data voluminous Despite waters. surface to any outfalls at metals CCW toxic limits for effluent no contained TVA most permits that revealed permits of TVA’s investigation EIP’s NPDES N C Act operating permits. operating Act Air Clean expired under operate plants environmental laws. environmental federal upcoming and current ply with com to plants fossil aging its retrofit or maintain, properly repair, to of capital amounts TVA large that outlay requires now maintenance plant coal in vestment Ultimately, TVA’s under-in long-term a recent letter to Tennessee regulators regulators Tennessee to letter recent a in example, For TVA itself. with rests terms permit weak for responsibility some permits, Act Water Clean sue lean W lean oncompliance Finally, 8of TVA’sFinally, power 11 coal-fired Although regulators ultimately is ultimately regulators Although ate 151 r A

ct ct 149

150 As technical technical As 148

------17 Outside the Law 158 l enera G -

In - 162 164 nspector I Again 159 ffice of Yet in 2006, Yet O 163

TVA — Then, in 2003, a slope In 1995, TVA obtained In TVA 1995, a 161 160

157 For example,For was in TVA 1985, of the root cause behind Kingston TVA’s spill reveals that could TVA have acted decades earlier to avert the Kingston spill. report OIG’s exposed inad TVA’s equate coal ash management practices, deficient fossil plant maintenance, and an internal corporate culture more likely to cover-up rather than proac tively eliminate known environmental risks. in 1987, despitein recommendations 1987, to manage ash disposal sites under the Dam Safety Program, chose TVA to forgo complying with federal dam safety standards contending that ash pond dikes “were not dams per se” and that is“TVA not strictly subject to Federal guidelines.” warned about “dike slide failure” at the Kingston ash pond in a memo that recommended “daily inspections of this dike by plant personnel.” around Kingston’s ash ponds failed. Kingston had another slope failure. In response to this incident, did TVA less than half the work its engineers recommended to solve the problem, and manager a TVA stated that the area “looked fine and thathe wanted to wait to see what happened.” landfill permit fromTennessee state regulators, and expanded the ash ponds at Kingston. 2008, after decades of warnings, prior accidents, and repeated opportunities to reduce risks, the dike around Kingston as early as 1987 were not not were as 1987 as early mitigated.” adequately management that were known known were that management “risks associated with ash ash with associated “risks

- - - - 155 - - Under the However, However, OIG’s reviewOIG’s 154 152 156 onmental onmental r i v Although water n 153 ed E ed ingston r monitoring requirements for gno billion cleanup bill. ­conditions based on outmoded data.

A I TVA operatesTVA 5 of its coal-fired 11 V By operating under expired permits, canTVA discharge CCW wastewater, laden with heavy metals, under old per mit Risks at K at Risks managementTVA did not respond to repeated concerns about the safety of the Kingston coal ash impoundment, an irresponsible approach that put the public at risk when Kingston’s coal ash impoundment dike failed, destroying a nearby community, polluting the environment, and leaving with TVA a $1.2 T total metals and cyanide. regarding Johnsonville Fossil Plant, requestedTVA that the state agency remove mits, including Paradise Fossil Plant, Kingston Fossil Plant, Bull Run Fossil Plant, John Sevier Fossil Plant, and Johnsonville Fossil Plant. power plants under expired Clean Water Act, National Pollution Discharge Elimination System (NPDES) per quality criteria are usually not enforce able at the end of pipe unless they are incorporated into a permit, the regular discharge of heavy metals above the toxic water quality criteria from TVA CCW outfalls warrant placing monitor ing requirements in water TVA permits. Rather than removing monitoring for these metals at Johnsonville, regulators and should TVA insist on rigorous mon itoring requirements and strict effluent limits that protect the environment. Clean Water Act, discharge of pollutants from a point source into the navigable waters of the United States is prohibited unless authorized by a NPDES permit. Johnsonville CCW outfall 001 discharg es Arsenic, Selenium and Aluminum at levels that exceed U.S. Water EPA Quality Criteria. 18 Outside the Law ten years indicate repeat findings of conducted by the oig over the last “the audits and investigations noncompliance with policies ship and management policies. management and ship leader of top-down result the was found, TVA’s OIG of noncompliance, culture N community. surrounding the into spill to waste ash coal toxic of gallons billion 1 causing failed pond ash ship and staff atTVA. staff and ship leader the in engrained was compliance TVA’s that itfound non Kingston, up to leading risks environmental the ignored that culture internal the examined General TVA’s When Inspector of Office E T and under this Board’s leadership, TVA’s leadership, Board’s this under and terms, W. George Bush’spresidential ing dur established was TVA Board current The spill. Kingston the to prior risks environmental assess properly to little did TVA’s that shows of Directors Board indicate repeat findings of noncompli findings repeat indicate years ten OIG the by last over the ducted con investigations and audits “the that, ance with policies and procedures.” and policies with ance n V oncompliance A closer look atTVA’sA closer management A v ’s Cu i r onmental lt ur and procedures.” e o f 165 OIG reported OIG reported — 167 TVA 166

OIG

- - - - 168 - - tion open for appointment. for open tion posi one additional leaving members, TVA board three nominated Obama the Senate. by U.S. confirmed and President the by nominated are bers to environmental accountability. environmental to resistant culture internal IG an found Board of Directors. Board TVA member TVA Act, anine have must the Under down. top the from citrance recal TVA’ster of environmental culture atTVA help al may changes Leadership management. levels of TVA highest atthe apriority is compliance environmental that ensure can Obama President maintenance. plant fossil and renewable energy in investments financial as well as emissions, mercury and gas greenhouse waste, coal for new regulations with compliance environmental regarding years coming the in decisions critical make will TVA’s of directors board course. TVA a new to help fields chart compliance regulatory or protection, renewable energy, environmental the in leaders appoint can Obama President levels of TVA management. atall compliance environmental and transparency, greater establishing to committed new leadership with replaced compliance. environmental and culture internal TVA’s improve and alter to leadership new establishing years, three next the over members TVA Board remaining all replace can Obama President fact, In onTVA’s ofmajority directors. board anew establish to Obama President allowing expire, will term Thrailkill’s 2010, Howard member TVA Board As of December 2009, President President 2009, of December As The current TVA Board should be be should TVA Board The current 172

170 TVA mem board 171 In May May In 169

- - - - 19 Outside the Law Coal ash sludge at Kingston Fossil Plant - private … liminate

174 egislation to E onclusion TVA is an atypical TVA federal pecial Protections. The 173 ’s S ’s d C VA upport L T White House and Congress can help by supportingreform TVA legislation special protections,to TVA’s remove S agency, removed from removed agency, centralized control in Washington, and designed by Congress to have legal claims “exercised against the Tennessee AuthorityValley exactly as they could have been exercised against ­utility companies.” have lingered the for years. Today, “unitary executive” theory, supported by Executive and Orders (No. 12,146 pose12,088) roadblock a and to EPA DOJ enforcement environmental of does facilities. laws TVA at TVA Yet not rely on DOJ for its defense and retains independent litigating au thority. n • : A V - ustice tions a tions to VA da A and the J ntability at T at ntability an Take T P u cco e A r TVA hasourt. repeatedly TVA invoked larify that E its federal status to respon avoid sibility for its own environmental misconduct. A directive from the White clarifying House, that the “unitary executive”theory does not and DOJprevent EPA from taking enforcement action against TVA will bring help into compliance TVA with federal environmental laws and resolve environmental violations that Department C C Resto • c Recommen bringTo into compliance TVA with environmental laws and prevent another disaster like the Kingston coal ash spill, the Obama Administration and Congress should: 20 Outside the Law i • term environmental practices. practices. environmental term TVA’s improve and long- Kingston at disaster immediate the beyond TVA’s extend will accountability (D-TX) Johnson Bernice Eddie Representative by chaired Committee), Infrastructure and Transportation of the committee (a sub Environment and Resources onWater Subcommittee House the and (D-CA), Boxer Barbara Senator by chaired Works Committee Public and Environment Senate Committees—the two by of TVAoversight exercised is Congressional production. energy clean and sustainability ronmental of envi example anational become and disaster another prevent to steps ittakes that ensure to oversight Congressional TVA increased needs spill, Kingston the regarding hearings TVA held have multiple oversight with charged Committees Senate and House the Although authority. oversight its TVA through reforming role in acritical plays Congress regulations. energy and vironmental for TVA to stay ahead of changing en of changing TVA ahead for stay to incentives create and grid, efficient energy- and interconnected more a in result TVA competitive, more make would protections special these Removing system. transmission its to access restrict and area TVA service the from TVA competitors exclude to allows legislation federal Similarly, wrongdoing. environmental its for utility other any as accountable as be should therefore, and appropriations federal or dollars ontax longer relies TVA area. no service out of its utilities rival keep that measures competitive anti- and violations, environmental for penalties from immunity as such ncrease E ncrease nvironmental O nvironmental Greater oversight oversight . Greater versight. versight. - - - E c • Re s • n f ity,” accountabil and over transparency prevailed have to seems strategy tion “litiga that reported general inspector TVA’s Disaster, Kingston of the cause root the examining upon example, For environment. of the expense the at made decisions cost-saving and of neglect culture internal of its uct aprod is “footprint” environmental C over twenty years ago years over twenty transition this make to TVA promised future. immediate the in systems disposal dry to ponds storage CCW wet its TVA transition must Disposal. operations. level atevery of TVA’scompliance environmental and transparency, greater establishing to committed new leadership with replaced be member Board of Directors. Board member TVA’s to nominees three nine- named Obama President 2009, of December As TVA’s to ship of Directors. Board of new leader appointment the with starting down, top the from change to the Kingston spill, Kingston the to prior risks environmental erly assess prop to little did TVA Board current spill.” the precipitated that stage critical the to advance to conditions to allowed procedures and policies or practices management which “investigate to future. All of TVA’s All plants future. 11 coal near the in a reality storage CCW dry,zero-discharge wet to from sition tran the make to resources financial and organizational requisite the ted commit or atimeline, produced not Yet TVA still spill. has Kingston the after storage dry to ponds waste coal wet its convert to again promised v witch From Wet to Dry C Wet Dry From to witch o reate aC reate TVA’s large and dirty TVA’sompliance. dirty and large i r r 175 onmental Footp m and Red 176 resulting in TVA’s in not resulting decision TVA’s internal culture can can TVA’s culture internal ulture of E of ulture u ce T 178 179 and should should and nvironmental nvironmental and recently recently and V r A int: ’s 177 oal A oal The sh sh ------21 Outside the Law ------sion u fuels in place coal. of Transitioning away from fossil fuels for electricity production will an make ex TVA cleanample of energy production and environmental stewardship. oncl C Although exemplifies TVA some of the worst environmental practices in the utility industry, can TVA once again become the symbol of economic prosperity Franklin Roosevelt D. en visioned over years75 ago. As a fed eral utility, presents TVA the Obama Administration and Congress with a remarkable opportunity to transform intoTVA a model of clean energy pro duction and environmental stewardship. must TVA takeHowever, immediate action to reduce air and water pollution, earn back the public trust, and dem onstrate compliance with federal envi ronmental laws. In addition, the White House and Congress can reform by TVA appointing new leadership, allowing for federal enforcement of environmental laws, and providing more stringent coal-fired 11 oversight of TVA’s power plants. With reform, can TVA become a leader in clean, energy efficient power production and state of the art environ mental protection.

- 180 - - lean, Specifically, TVA must TVA 183 181 oal to C In addition, is TVA 182 TVA must TVA nergy. enewable E enewable have wet coalhave wet waste storage on-site, and all regularly 11 discharge heavy metals that at levels exceed federal water quality criteria. ing units. can make TVA capital in vestments in power plants new fueled by natural gas energy or renewable sources. is already TVA anticipating that retiring units at John Sevier Fossil may Plant be (1955) more cost effective than retrofitting with pol lution controls. R decide whether to make investments in its aging coal-firedfleet or simply retire the oldest, most underperform Transition from C end its toxic discharges and develop zero discharge systems for CCW. considering retiring the oldest units at Widows Creek if Fossil Plant (1952) forced to comply with court rulings to reduce air pollution. TVA should agreeTVA to cut its emissions carbonof dioxide at least 20% below 2005 consistent levels, with the goals established in the American Climate and Energy Security Act approved by the Representatives House of in June can2009. become TVA a leader in the transition to clean energy sources by developing energy renewable projects and switching to cleaner burning • 22 Outside the Law 11 10 9 N 8 7 6 5 4 3 2 1 otes 100 Commerce, and Energy on Comm. Investigations and Oversight on Subcomm. H.R. the Before Laws Environmental with Compliance Facility Federal on Hearing also, see (1995); (finding multiple violations of the Clean Air Air Clean the of violations multiple (finding 7 note supra Authority, Valley In re Tennessee (11th 1245 2003). 1236, Cir. F.3d 336 v. Whitman, Authority Valley Tennessee cases). of thousands in itself represented has TVA and the Act under authority litigating independent TVA has that TVA, (Finding 1983) F.2d 723 (Fed.Cir. 1560 v. Cooper 1987); F. (E.D.Tenn. 668 646 Supp. 1184, v. Herrington, 1191 Dean (11th 2002); Cir. v. EPA, 278 F.3d Authority Valley Tennessee See Justice). of Department Division, Resources and Land Gen., Att’y Assistant II, Habicht F. of Henry (statement 19 (1987) 54 54 Requirements, Environmental with Compliance Facility Federal Legislate to Attempts Congressional of Inadequacies The Kassen, R. Melinda generally, See (2000). 357 9E.A.D. Authority, Valley Tennessee In re Board, Appeals EPA,U.S. Environmental revenues”). other and financings, power revenues, system power generated using ness busi its funds and Congress from propriations Report Annual TVA 2009 [hereinafter (2009) 138 10-K), (Form Report Annual Authority, Valley Tennessee lawsuit). to subject be or emissions air harmful reduce to have not should it agency, afederal as that ing argu by defendants other the from itself guish distin to attempted (TVA 2009) Cir. (2d 388-92 F.3d 582 309, al, et Inc., Co. Power Electric v. American al. et Connecticut, of e.g., State See, ($35/kilowatt)). Progress and ($40/kilowatt); Southern ($42/kilowatt); AEP as such that, twice than more spend utilities neighboring however, other maintenance, plant on $17/kilowatt spends (TVA 2009) (Aug. 20, Meeting Directors of TVA Board triexplorer/. a 20), ranks Gallatin 16; and ranks Johnsonville 13; ranks 7; Cumberland ranks Kingston 5; ranks Creek Widows (Specifically, (2007) Facilities Utility Electric 20 Top for pounds) (in Compounds Metal and Metals Discharges, Water Surface Inventory, Release EPA,U.S. Toxics 4, 2008). (Mar. No. 23C-8 Matters, Plant—Environmental Fossil Creek Widows 17, TVA, OIG Report, (Dec. 2007-019F 2007); No. TVA at Facilities, Events Environmental Reportable of Review TVA, OIG Report, OIG Report Kingston [hereinafter 2009) 23, (July Management Ash About Observations And Study Cause Root Spill Ash Plant Fossil Kingston the of Review 12283-02, 2008- Inspection (OIG), General Inspector the of Office (TVA), Authority Valley Tennessee ] (“TVA currently receives no ap no receives ] (“TVAcurrently ]. vailable at www.epa.gov/ at vailable M d .L.R th Cong. Cong. ev . 1475, - - - - 21 16 15 14 13 12 23 20 19 18 17 22

10-Q, 46 (July 31,10-Q, [hereinafter 2009) are Modified, if Regulations Stations Power Fired Coal Down TVA Shut May writer, Staff Johnunits”). Sevier to ofsome orthe controls all or emissions add to operate, retire, TVAgives plant the flexibility the new power unsuccessful… is appeal lawsuit Carolina Tennessee. If the North northeast in cyclepower combined plant a gas-fired building June(“On 4, 2009, the TVA approved Board TVA for Board, Professor Lawyer, Nominates Obama Schelzig, Erik 4. at 1, note supra OIG Report, TVA, Kingston 1. note supra OIG Report, TVA, Kingston Hill). Sen. of (1946)(statement 6563-64 Rec. 79 Cong. (citing 2008) Cir. (4th 349 344, v. TVA, Cooper 515 rel. ex F.3d Carolina North cases). of thousands in itself represented has TVA and the Act under authority litigating independent TVA has that TVA, (finding 1983) F.2d 723 (Fed.Cir. 1560 v. Cooper 1987); F. (E.D.Tenn. 668 646 Supp. 1184, v. Herrington, 1191 Dean (11th 2002); Cir. v. EPA Authority Valley Tennessee See units). TVA’s coal-fired at requirements Review Source New Act’s 1.2B, Reports 3Q Loss, Loss, 3Q Reports 1.2B, Tab to Ash Coal TVA Raises Mansfield, Duncan Hearing Before the S. Comm. on Environment Environment on Comm. S. the Before Hearing Spill: Ash Coal Major Recent the and Authority Valley Tennessee the on Hearing Oversight acres”). 600 approximately of consisting land of tracts 145 acquire to spent was which of million $42 2009, 30, September of as million $69 mately approxi paid TVA had spill, ash the from arising claims other settle 133 (“To 6at note supra Report, Annual TVA 2009 also, see 2009); E 24, 2009); 24, 2009); TVAAlter Culture, Could Picks Obama’s Collins, Michael 10, 2009); See A. Appendix See 8-10 years). within ponds convert to (proposing releases/julsep09/ccprp_other.htm http://www.tva.gov/news/ at available 2009) (Aug. 20, Proposed Plan Remediation Products TVA Combustion Coal Release, TVA, Press Tennessee). TVA files, Archived 29, 1988, December Program, Safety Dam of Manager G. Herndon, Morris to Construction, and Engineering Power of President Vice W.M. Bivens, 15, (citing page C, Appendix 1at note supra OIG Report, TVA, Kingston T term, TVA on another for board remain may Sansom Bill Paine, Anne 19, 2009); (Sept. Area, in Spill Projects T.V.A. Dewan, on Million Shaila $43 Pay to See http://www.energy-business-review.com/. at Fired Plants, Fired ne ennesse Dave Flessner, r gy B a usiness n see see also (Dec. 5, 2009). (Dec.

C h R a tt , TVA Quarterly Report, Form , TVAReport, Quarterly eview a TVA Coal- May Aging Shutter K noog noxvi N A available available 6, 2009), (May . Y ssoci a . T A

ll T ssoci i i e m m a N es es ted ews a F (Sept. 14, 2009); 14, 2009); (Sept. ted P r S ee r P entine ess P TVA 10-Q , 278 F.3d r r ess (Aug. 2, (Aug. 2, T ess he (Sept. (Sept. - (Aug. l

] 23 Outside the Law ------(Nov. 1, 2007). 1, (Nov. l entine S ews N e ll noxvi TVA, IntegratedTVA, Resource Plan, Clean Energy, availableat: http://www.tva.gov/environment/ reports/irp/pdf/clean_energy.pdf (“TVA com plies with the Energy Policy Act of 2005, which requires that all federal agencies, to the extent economically feasible and technically practi cable, use not less than the following amounts of renewable electricity in their facilities: In fiscal year 2007–2009: 3%; In fiscal year 5%;2010–2012: In fiscal year 2013–thereafter: 7.5%”). K Id. (citing U.S.C. § 831a). 16 Id. (citing U.S.C. § 831b). 16 Id. (citing U.S.C. § 831h(b)). 16 Id. (citing U.S.C. § 831n-4(b))(“When 16 creat ing in the Congress 1933, TVA indicated that it “intend[s] that the corporation shall have much of the essential freedom and elasticity of a private business corporation”). Id. (citing Cong. 79 Rec. 6563-64(1946))(state ment of Sen. Hill). See, State e.g., of Connecticut, 309 et al., 582 F,3d (2d Cir. 2009); North Carolina ex rel Cooper v. 439 F.Supp.2d 486 2006);TVA, (W.D.N.C. Tenn. Cir. (11th 1184 F.3d 278 Valley EPA, Auth. v. 2002); Tenn. Valley United Auth. v. States, Cl. 13 Ct. 692 (Cl. Ct. 1987). North Carolina F.3d ex rel. 515 Cooper TVA, v. 344 (4th Cir. 2008). Id. at 349. North Carolina, ex rel. Slip Cooper Op., TVA, v. 2009 WL 2009). 2497934 Aug (W.D.N.C. 14, 10-Q,TVA supra note 20 at (TVA 37 estimates that the cost of these emissions controls will be approximately billion $1.7 in fiscal years 2009 through 2014). North Carolina, ex rel. No. Cooper TVA, v. 1:06CV20, 2009 WL 2497934 Aug (W.D.N.C. 14, 2009). Connecticut American v. Elec. Power Inc., Co., slip. 2009 op., WL 2996729 (2d Cir. 2009) (Defendants are Southern TVA, Company, American Electric Power Company, XCEL Energy, and Cintergy). Id. at 138 (“We hold that neither the political question doctrine nor the discretionary func tion exception warrant dismissal of Plaintiffs’ claims against TVA”). National Parks and Conservation Ass’n, Inc. v. Cir. 2007). (11th 1316 502 F.3d TVA, 10-Q,TVA supra note 2009) 20 at (July 70 31, (The lawsuit “could cause to install TVA ad ditional emission control systems such as scrubbers and SCRs on units where they are not currently installed, under construction, or planned to be installed”). See Sierra F.Supp.2d 1357 592 Club TVA, v. (N.D. Ala. 2009); see also, Andrew Eder, TVA Spending $80M on Alabama Plant Improvements, 55 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 - - - - - guish itself from the other defendants by argu ing that as a federal agency, it should not have to reduce harmful air emissions or be subject to lawsuit). (11th 1192 1184, U.S. F.3d 278 E.P.A. v. TVA Cir. 2002) (When fightingU.S. enforce EPA claimedment, TVA it is not a typical federal agency and should not be represented by the Department of Justice like most federal agen cies. Instead, argued TVA that it possesses independent litigating authority, and should be able to hire private law firms, as private utili ties to do, protect its business interests). Tennessee Valley Authority Act (“TVA of 1933 Act”), U.S.C. § 831 et seq. 16 (2009). Id. 2009TVA Annual Report, supra note at 6, 45 (Congress supported energy system TVA’s until after 1959, the bulk of its fossil units were operational, and supported other TVA’s activities with taxpayer funds until 1999). 77 Cong. Rec. (1933). 1423 U.S.C. § 831c(b);16 see United also, v. TVA States, Fed.Cl. 284 contract 51 (A (2001) dispute between and TVA Department of Energy in which the Court of Federal Claims noted that “conductsTVA its litigation independent of the Department of Justice”). Cir. (11th 1192-93 1184, F.3d 278 EPA, v. TVA 2002). North Carolina F.3d ex rel. 515 Cooper TVA, v. 344, 349 (4th Cir. 2008)(citing 28 U.S.C. § 1491(c)). and Public (Jan. 8, Works 2009) (Statement of Sen. Barbara Boxer, Chairman, S. Comm. on Environment and Public Works). See generally, Kingston Report, OIG supra note 1. Report, OIG TVA, Review of Reportable Environmental Events Facilities, at TVA No. 2007);2007-019F (Dec. Report, OIG TVA, 17, Widows Creek Fossil Plant—Environmental 23C-8 No. Matters—Air, (Mar. 2008). 4, See North e.g., Carolina, ex rel. Cooper TVA, v. Slip 2009 Op., WL 2497934 Aug (W.D.N.C. 14, 2009). As of December coal 2009, TVA of 8 11 plants operate under expired Clean Air Act operating permits and 5 of coal 11 fired TVA’s power plants operate under expired Clean Water Act Permits. According to Toxics U.S. EPA Release Inventory, these plants 11 release well over 20 million pounds of pollutants each year. EPA, Toxics Release Inventory, available atwww. epa.gov/triexplorer/. 2009TVA Annual Report, supra note 6 at 41. Id. at 12–21. See, State e.g., of Connecticut, et al. American v. Electric Power Co. Inc., et al, 309, 582 F.3d 388-92 (2d Cir. 2009) (TVA attempted to distin 31 32 33 34 35 36 37 38 24 25 26 27 28 29 30 24 Outside the Law 64 63 62 61 60 59 58 65 57 56 66 100 Commerce, and Energy on Comm. Investigations and Oversight on Subcomm. H.R. the Before Laws Environmental with Compliance Facility Federal on Hearing also, see (1995); 54 Requirements, Environmental with Compliance Facility Federal Legislate to Attempts Congressional of Inadequacies The Kassen, R. Melinda generally, See (2000). 357 9E.A.D. Authority, Valley Tennessee In re Board, Appeals EPA,U.S. Environmental (2009). 16 §831n-4 U.S.C. F.3d 430 1337 (11th 2005). Cir. Authority, Valley v. Club Tennessee e.g., Sierra See (2009). 16 §831c(b) U.S.C. suit”). to immune not are thus and nature in commercial are activities generating power- 2008)(“TVA’s Cir. F.3d (4th 347 344, 515 Authority, Valley v. Tennessee Cooper rel. ex Carolina North 2009); Cir. (2d F.3d582 388 309, Co., Inc. Power Elec. v. American Connecticut facilities”). its operates it how in changes make or costs, power purchased its increase expenditures, capital significant make to TVA require could developments (“Such 35 6at note supra Report, Annual TVA 2009 Plural Judiciary, 105 Judiciary, Plural Executive; Unitary Constitution: Structural The Rhodes, H. &Kevin G. Calabresi Steven generally, see America”); of States United the of aPresident in vested be shall Power executive §1(“[t]he II, Article Constitution States United also, See law”). the with compliance on them advising and matters, environmental in agencies federal the senting repre clients, our to advice legal providing for responsible also “is DOJ that (noting Id. Justice). of Department Gen., Att’y Assistant II, Habicht F. of Henry (statement 1987) 28, 19 (April A Turbines, Wind Dakota North From TVA Megawatts 450 Buy to Mansfield, Duncan ev2020_execsumm.pdf. gov/environment/reports/energyvision2020/ http://www.tva. at available 1995) 2 (Dec. Summary, Executive 2020, Vision TVA, Energy Exec. Order Order Exec. also, see added); court”)(emphasis any in proceeding to prior General Attorney the to dispute the submit shall agencies the dispute, alegal such resolve to unable are President the of pleasure the at serve heads whose agencies Executive more or two “whenever that stating narrow, more is 1-402 Section in Thelanguage General. Attorney the to dispute the submit to encouraged is agency . each disputes legal resolve to unable are agencies Executive more or two “whenever that states 1-401 18, (July 1979) 42,657 (Section Reg. Fed. 44 No. 402, 12,146, and 1-401 Order §§ Exec. See agencies”). or officers inferior vise super and control, direct, can therefore [ ]he and power executive the of all possesses alone President “the that, provides government of theory executive” “unitary (The (1992) 1165–66 ssoci a ted P r ess (Oct. 22, 2009). 22, (Oct. H ar v . L. R . L. ev M . d 1153, T .L.R he th Cong. Cong.

ev . 1475, - - 73 72 71 70 69 68 67 74 rather than judicial action. See action. judicial than rather Agreement Consent administrative by settled was spill waste coal Kingston the Even 1261. at Id. 2003). F.3d (11th 336 1245 1236, Cir. TVA v. Whitman, dispute”). branch intra-executive an of resolution for portunity op an provide agencies, branch executive vise super to authority constitutional President’s the of exercise an Orders, Executive These 12,146. and 12,088 Orders Executive to ant pursu President the by created mechanisms dispute inter-agency certain of itself avail EPA, may it with adispute TVA has extent the to “that and controversy” or case III Article an present to required adversity concrete the entities…lack controlled commonly between “disputes that 1184 (Arguing (11th 2002) Cir. TVA 1, v. EPA 2000) (Oct. Agency Protection Environmental States United Respondent for Brief Revised Second See TVA Act). the under authority litigating independent had TVA that (finding 551 (M.D.Ala.1982) Supp. v. TVA Inc. Contractors, Indus. Blair TVA v. Cooper F. (E.D.Tenn.1987); 668 646 Supp. 1184, v. Herrington 1191 Dean (11th 2002); Cir. v. EPA, 278 F.3d Authority Valley Tennessee See Justice). of Department Gen., Att’y Assistant II, Habicht F. of Henry (statement 1987) 28, 19 (April Cong. 100th Commerce, and Energy on Comm. Investigations and Oversight on Subcomm. H.R. the Before Laws Environmental with Compliance Facility Federal on Hearing TVA Act). the under authority litigating independent had TVA that (finding 551 (M.D.Ala.1982) Supp. v. TVA Inc. Contractors, Indus. Blair TVA v. Cooper F. (E.D.Tenn.1987); 668 646 Supp. 1184, v. Herrington 1191 Dean (11th 2002); Cir. v. EPA, 278 F.3d Authority Valley Tennessee See added). standards”)(emphasis control pollution applicable of enforcement the for sanctions, including procedures, other of, lieu in not to, addition “in are Order Executive this in procedures resolution dispute The conflict.” the resolve to Budget and Management of Office the of Director the request shall Administrator the conflict, cies agen Executive between standard] control pollution applicable an [of violation regarding conflicts resolve to effort every make “shall 47,707 18, EPA (July 1979) Administrator (The Reg. Fed. 43 1-604, and §1-602 No. 12,088 515 F.3d 344, 349 (4th Cir. 2008) (“The TVA (“The 2008) 515 Cir. (4th F.3d 349 344, v. TVA, Cooper rel. ex Carolina e.g., North See pdf. kingston/May8TVAKingstonFinal106Order. http://www.epa.gov/region4/ at available 2009), (May No. CERCLA-04-2009-3766 Docket Consent, on Agreement and Order Administrative Release, Plant Fuel Fossil TVA Kingston … Algernon Algernon F.2d, 723 (Fed.Cir.1983); 1560 Algernon F.2d, 723 (Fed.Cir.1983); 1560 If the Administrator cannot resolve a resolve cannot Administrator the If , U.S. EPA,, U.S. , 278 F.3d , 540 F., 540 F., 540 - - - , , - 25 Outside the Law . 1011 (Oct. 1976). As. 1011 coal is ech . & T ci . S l nvt E Agreement and Revised System Impact Studies (Issued Aug. 2005), 3, available at http://www. ferc.gov/eventcalendar/Files/20050803130126- TX05-1-0001.pdf. Review Financial OIG, TVA of TVA’S Performance, supra note at 79 20. TennesseeU.S. GAO, Valley Authority, Plans to Reduce Debt While Meeting Demand for Power, GAO-06-810, 2006), 6 (Aug. available at http:// www.gao.gov/new.items/d06810.pdf. 2009TVA Annual Report, supra note 6 at 23. 10-Q,TVA supra note 20at 14. U.S. Characterization EPA, of Coal Combustion Residues from Electric Utilities Using Wet Scrubbers for Multi-Pollutant Control xvi (July 2008), available at http://www.epa.gov/nrmrl/ pubs/600r08077/600r08077.pdf. Martha Keating et al, Earthjustice, Waste Deep: Filling Mines with Coal Ash is Profit For Industry but Poison for Communities, 2, available at http://earthjustice.org/library/ reports/earthjustice_waste_deep.pdf (citing Chantal Block and Richard Dams, Study of Emissions During Combustion of Coal, 10 burned, “its volume is reduced by two-thirds to four-fifths, concentrating metals and other minerals that remain in the ash.” Id. FossilTVA, Fuel Generation, www.tva.com/ power/fossil.htm (last visited 9/11/09). See generally, U.S. Human EPA, Health and Ecological Risk Assessment from Coal Combustion Wastes (Draft) (2007) (prepared by RTI),available at http://www.pineswater.org/ EPA_ccw_risk.pdf. U.S. Toxics EPA, Release Inventory, Federal Facility Report: Tennessee Valley Authority (2008). U.S. News EPA, Release, Expects EPA to Revise Rules for Wastewater Discharges from Power Plants (Sept. 2009). 15, U.S. Office EPA, of WasteSolid and Emergency Response, Responses March From to EPA’s TVA 20099, Information Request Letter (surface area of CCW surface impoundments at each plantTVA derived by adding the surface area of various impoundments at each coal TVA plant), available at http://www.epa.gov/osw/ nonhaz/industrial/special/fossil/surveys/ survey2.pdf. See U.S. Office EPA, of WasteSolid and Emergency Response, Responses From to TVA March 2009 9, EPA’s Information Request Letter (listing both the size and hazard potential of all coal TVA waste impoundments) available at http://www.epa.gov/osw/nonhaz/industrial/ special/fossil/surveys/survey2.pdf. Id. U.S. Office EPA, of Waste,Solid Human Ecological Risk Assessment of Coal Combustion Wastes, Attachments B-1 & B-2 2007). 6, (Aug. 93 94 95 96 97 98 99 100 101 102 103 104 105 106 - - - - , 278 F.3d 1184 (11th (11th 1184 F.3d , 278 … A downgrade would increase TVA’s has, in fact, sued the United States on several occasions, successfully arguing that its separa Cir. 2002). Tennessee Valley Authority 278 U.S. E.P.A., v. Cir. 1203 2002).(11th 1184, F.3d U.S.C. § 831n-4(b)(2009)(“Bonds16 issued by the Corporation hereunder shall not be obliga tion from the Executive Branch enables it to sue both the United States and its executive agencies”). See, Reply Brief of Petitioner Tennessee Valley Authority on Review of Decision of the Environmental Appeals Board, 2001 WL 34807644, viii, EPA v. TVA tions of, nor shall payment of the principal thereof orinterest thereon be guaranteed by, the United States”). U.S.C. § 831n-416 (2009). Final OIG, TVA Report—Inspection 2007-11399— Review Financial of TVA’S Performance, 4 (June 23, 2009). U.S. Government Accountability Office (GAO), Tennessee Valley Authority: Bond Ratings Based on Ties to the Federal Government and Other NonfinancialFactors, GAO-01-540 2001). (Apr. Id. Review Financial OIG, TVA of TVA’S Performance,supra note at 79 33. atId 9. 2009TVA Annual Report, supra note 6 at 35-40 downgrade(“A credit in rating TVA’s could have material adverse effects cash on TVA’s flows, results of operations, and financial condition as well as on investors se in TVA curities interest expense by increasing the interest rates that pays TVA on new Bonds that it is sues. An increase interest in TVA’s expense would reduce the amount of cash available for other purposes, which could result in the need to increase borrowings, to reduce other expenses or capital investments, or to increase power rates”). U.S.C. §§ (2009). 831-831ee 16 Federal et seq., Power Act, U.S.C. § 791a 16 amended by: Energy Policy Act of 1992 (EPAct). U.S.C. § 831n-416 (2009). Section 212(j) of the Federal Power Act, 16 U.S.C. §824k. Review Financial OIG, TVA of TVA’S Performance, supra note at (Figure 79 21 7). 2009TVA Annual Report, supra note 6 at 23–24. 2009TVA Annual Report, supra note 6 at 24. 2009TVA Annual Report, supra note 6 at 23; see generally, FERC, East Kentucky Power Cooperative, Inc. Docket TX05-1-000, No. et al., Order Directing the Filing of an Interconnection 76 77 75 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 26 Outside the Law 121 120 119 118 117 116 115 114 113 112 111 110 109 108 107 note 1, i. note at supra OIG Report, Kingston 2007). year the in discharges its for Bodies” Water or Stream “Receiving the as waters ing receiv these reported (TVA (2007) Reports R Form Inventory, Release EPA,U.S. Toxics 2008). EPA in U.S. to TVA facility each by reported release water surface on-site total the represents (this (2008) Inventory Release EPA,U.S. Toxics impoundments. and TVA’s ponds from CCW discharges receive that impoundments and TVA ponds CCW near ters wa of list for Inventory” Release EPA Toxics Discharges—U.S. Water “Surface Chart, See B(Aug. 6, 2007). Appendix (Draft), Wastes Combustion Coal of Assessment Risk Ecological Human Solid Waste, of EPA,U.S. Office 14. at 20 note supra TVA 10-Q, Tennessee). files, TVA Archived 29, 1988, December Program, Safety Dam of Manager G. Herndon, Morris to Construction, and Engineering Power of President Vice W.M. Bivens, 15C, (citing Appendix 1at note supra OIG Report, Kingston 10, 2009). Ash, Fly of Disposal for Dry TVA Flessner, Dave Going also, 109, see note supra Release, TVA, Press See 15. page B, Appendix 1at note supra OIG Report, Kingston 19541955). between built was Plant Fossil 13 6at (Kingston note supra Report, Annual TVA 2009 also, see Id., releases/julsep09/ccprp_other.htm. http://www.tva.gov/news/ at available 2009) (Aug. 20, Proposed Plan Remediation Products TVA Combustion Coal Release, TVA, Press 2007). 9, (July Solid Waste of Office Assessments, Damage Waste Combustion EPA,U.S. Coal special/fossil/surveys/survey2.pdf. http://www.epa.gov/osw/nonhaz/industrial/ at available Letter, Request Information 9, 2009 TVA EPA’s to From March Responses Response, Emergency and Solid Waste of EPA,U.S. Office environment/pdf/environmental_policy.pdf. http://www.tva.gov/ at available 2008) Policy, 10 (May Environmental TVA, 2008 areas). recreational and schools, homes, to proximity the to due life human of loss cause probably will failure whose ponds ash coal to given is it integrity, structural of indication an not is rating potential” hazard a“high (Although pdf industrial/special/fossil/ccrs-fs/national. http://www.epa.gov/epawaste/nonhaz/ at available 2009) August (updated 2009 June EPA530-F-09-006, Ratings, Potential Hazard High with Impoundments (CCR)—Surface Residues Combustion Coal Sheet, EPA,U.S. Fact C h a tt a noog a T i m es F r ee P r ess (Aug. - - 134 133 132 131 130 129 128 127 126 125 124 123 122 140 139 138 137 136 135 S Improvements, Plant Alabama on $80M TVA Eder, Spending Andrew also, see 2009); v. TVA, Ala. 592 F.Supp.2d1357 (N.D. Club Sierra also, see installed”); be to planned or construction, under installed, currently not are they where units on SCRs and scrubbers as such systems control emission ditional ad TVA install to cause “could lawsuit (The 31, 70 (July at 20 2009) note supra TVA 10-Q, camddataandmaps.epa.gov/gdm/. http:// at available (2008) Plants TVA Fossil for Data Markets Air EPA, U.S. Clean See C.F.R.40 §81.401–81.428 (2009). Value (2009). Important an is Visibility Where Areas IFederal Class Mandatory of D—Identification 81, Subpart C.F.R.40 Part 128. note supra Concern, for Causes Chief Dioxide, EPA,U.S. Sulfur nitrogenoxides/health.html. http://www.epa.gov/air/ at available Health, Oxides, EPA, U.S. Nitrogen also, see Id.; urbanair/so2/chf1.html. http://www.epa.gov/air/ at available Concern, for Causes Chief Dioxide, EPA,U.S. Sulfur (2008). facilities Authority Valley Tennessee all by reported Emissions Annual Total Data, and Markets Air EPA,U.S. Clean http://camddataandmaps.epa.gov at available Maps, and Data Air Markets EPA,U.S. Clean Id. Id. (2008). Compounds Arsenic and Arsenic (2211), for Utilities Electric for Facilities, 100 Top pounds), (in Released Otherwise or of Disposed Reported Off-site and site On- Inventory, Release EPA,U.S. Toxics www.atsdr.cdc.gov/tfacts2.pdf. http:// at available (Aug. 2007), Arsenic for Profile (ATSDR), Toxicological Registry Disease and Substances Toxic for Agency Services, Human and Health of Department U.S. 2007-019F (Dec. 17, 2007); TVA, OIG Report, 17, TVA, OIG Report, (Dec. 2007-019F 2007); No. TVA at Facilities, Events Environmental Reportable of Review TVA, OIG Report, Id. (2000). 357 9E.A.D. Authority, Valley Tennessee In re Board, Appeals EPA,U.S. Environmental (Aug. 2009). 25 Facilities, Federal at Compliance Environmental of An Overview Facilities: Federal of State 2008 The Assurance, Compliance and Enforcement of EPA,U.S. Office Id. 4, 2008). (Mar. Matters—Air Plant—Environmental Fossil Creek Widows TVA, OIG Report, 2007); 17, (Dec. No. 2007-019F TVA at Facilities, Events Environmental Reportable of Review OIG Report, OIG Report, Kingston See entine l (Nov. 1, 2007). note 1; note supra K noxvi , No. 23C-8 , No. 23C-8 ll e N also, see ews -

27 Outside the Law

n a

l (Sept. (Sep. he T ess ess (Sept. 19, r r ennesse l entine P P T S he ted ted T a a ews entine S N e ssoci ssoci ll ews A A N e noxvi ll K noxvi K (Dec. 2009). 5, n a ennesse 2009). See Tennessee Valley Authority F.3d 278 EPA, v. Cir. 2002); (11th Dean 1191 Herrington, v. 1184, Supp. 646668 (E.D. F. Tenn. 1987); Cooper v. 1560 (Fed. 723 F.2d Cir. 1983)TVA, (Finding that has TVA independent litigating authority under Act the and TVA has represented itself in thousands of cases). North Carolina F.3d ex rel. 515 Cooper TVA, v. 344, 349 (4th Cir. 2008) (citing Cong. 79 Rec. 6563-64 (1946)(statement of Sen. Hill). KingstonTVA, Report, OIG supra note 1 at 4. Id. at 3–4. Erik Schelzig, Obama Nominates Lawyer, Professor Board, for TVA (Sept. 2009); 19, Anne Paine, Bill Sansom may remain board for another on TVA term, T 10, 2009);10, Anne Paine, Bill Sansom may remain board for anotheron TVA term, 2009);10, Michael Collins, Obama’s Picks Could Culture,Alter TVA KingstonTVA, Report, OIG supra note 1. KingstonTVA, Report, OIG supra note 1 at Appendix C, page (citing 15, Bivens, W.M. Vice President of Power Engineering and Construction, to Morris Herndon, G. Manager of Dam Safety Program, December 1988, 29, Archived files, TVA Tennessee). (Dec. 2009). 5, Michael Collins, Obama’s Picks Could Alter Culture,TVA Kingston Report, OIG supra note 1 at 6. Kingston Report, OIG supra note 1 at Appendix (citingC, 14–15, R.G. Donor, Director of Engineering Project, to C.C. Schonhoff, Director of Fossil and Hydro April Power, 3, Archived1985, files, TVA Tennessee). Kingston Report, OIG supra note 1 at Appendix (citingC, 15 Bivens, W.M. Vice President of Power Engineering and Construction, to Morris Herndon, G. Manager of Dam Safety Program, December 1988, 29, Archived TVA files,Tennessee). Kingston Report, OIG supra note 1. Id. at Appendix C, 15. Kingston Report, OIG supra note 1 at Appendix C, 16. Id. Kingston Report, OIG supra note 1. Kingston Report, OIG supra note 1 at 31. Kingston Report, OIG supra note 1. Id. Id. (2009). U.S.C. § 831a 16 Erik Schelzig, Obama Nominates Lawyer, Professor Board, for TVA 173 174 175 176 177 178 179 172 158 159 160 161 162 163 164 165 166 167 168 169 170 171 and 2

ted a ssoci (Sept. 2009); 14, A es m he i T . T Y . N (Aug. 20, (Aug. 2009) (These estimates do not emissions. x ess r P Widows Creek Fossil Plant—Environmental 23C-8 No. Matters—Air, (Mar. 2008). 4, TVA conservatively estimates that the Widows Creek leak alone included 944 tons of SO NO include litigation costs). Kingston Report, OIG supra note 1 at 29–35. Mansfield, Duncan, agrees TVA to increase rates, borrowing; cut costs, Id. Id. Alabama Department of Environmental Management(ADEM), the In Matter of Tennessee Valley Authority Widows Creek Fossil Plant, Air Facility ID 705-0008, No. Consent Order 08-XXX-CAP No. 2008). (Jan. 10, Id. BoardTVA of Directors Meeting 20, (Aug. 2009). BoardTVA of Directors Meeting 20, (Aug. 2009) (TVA spends $17/kilowatt on plant maintenance, other however, neighboring utilities spend more than twice that, such as AEP ($42/kilowatt); Southern ($40/kilowatt); and Progress ($35/kilowatt)). Report, OIG TVA, Review of Reportable Environmental Events Facilities, at TVA No. 2007).2007-019F (Dec. 17, Report, OIG TVA, Widows Creek Fossil Plant— Environmental 23C-8 No. Matters – Air, (Mar. 4, 2008). Review Financial OIG, TVA of TVA’S Performance,supra note at 79 18. Title V operating permits for Colbert, Cumberland, Gallatin, John Sevier, Johnsonville, Kingston, Shawnee and Widows Creek Fossil Plant are expired as of December 2009.1, See Earthjustice and Environmental Integrity Project, Press Release, Groups Appeal Decision to Allow Unlimited Toxic Metal Discharges from KingstonTVA Plant 2009) 13, (Nov. available at http://www.environmentalintegrity.org/ lawlibrary_09_11_13.php Gordon Park, G. Tennessee Valley Authority to Joe(TVA) Holland, Tenn. Dep’t Env’t and Conservation, TVA-Johnsonville Fossil Plant- NPDES Permit No. TN 0005444—Application for Renewal 20, (Aug. 2007). See Environmental Integrity Project letter to TDEC (Sept. 24, 2009) file (on with author); see also, Appendix A for a list of water quality exceedances coal at TVA plants, including Johnsonville. Id. 134233 (2009). U.S.C. §§ 1311(a), to Pay $43Shaila Million on Dewan, T.V.A. Projects Spill in Area, 157 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 180 TVA, Press Release, TVA Coal Combustion Press (Aug. 24, 2009); see also, TVA 10-Q, Products Remediation Plan Proposed (Aug. 20, supra note 20 at 46 (“On June 4, 2009, the TVA 2009) available at http://www.tva.gov/news/ Board approved building a gas-fired combined releases/julsep09/ccprp_other.htm (Six of cycle power plant in northeast Tennessee. If TVA’s 11 coal-burning plants use wet fly-ash the North Carolina lawsuit appeal is unsuc- handling systems, and all 11 use wet bottom- cessful… the new power plant gives TVA the ash systems. In addition TVA operates wet flexibility to operate, retire, or add emissions gypsum ponds at several coal-burning plants). controls to some or all of the John Sevier units”). 181 See Appendix A. 183 Staff writer, TVA May Shut Down Coal Fired 182 See Dave Flessner, TVA May Shutter Aging Power Stations if Regulations are Modified, Coal-Fired Plants, Chattanooga Times Free Energy Business Review (May 6, 2009). 29 Outside the Law ³ 3 11 15 38 43 27 22 1.4 130 520 320 400 Daily 1,500 1,200 (µg/L)² Maximum Reported Discharge A A A A A A A A A / / / / / / / / / 8 21 27 N N N N N N N N N Long Term Term (µg/L) Average Average 100 0.14 0.14 0.14 0.14 0.14 0.47 USEPA 5 Consumption Recommended WQC for Human Health From Fish Health From 1 cute: (WQC) (µg/L) ,K ,K ,K ,K nts D D D D , , , , Water Quality Criteria Criteria Quality Water a Life reshwater USEPA hronic: 5 hronic: 5 hronic: 5 hronic: 87 hronic: 87 hronic: 87 reshwater reshwater reshwater reshwater reshwater reshwater C C C 340 A 340 A 340 A 340 A F F F F F F hronic: 1000 C C C C Recommended reshwater A 750; F WQC for Aquatic F ste a anganese l W luminum luminum luminum luminum luminum luminum rsenic rsenic rsenic rsenic rsenic hallium hallium elenium elenium elenium ron (001) Pollutant (Outfall) (010) A (010) T (001) A A (001) M I (001) (001) A (001) S (001) A (001) S (001) A (001) S (001) A (001) A a o VA Fossil Pl Fossil VA ec. Date of DMR June 2009 D 2008 om T om ay 2005ay ay 2005ay ay 2005ay ay 2005ay ct. ct. ct. pril pril ept. ept. ept. Date of Permit Applica- Tion M S 2007 M A 2004 M M O 2004 S 2007 A 2004 O 2004 S 2007 O 2004 elect C elect iver iver iver reek reek ges fr ges cKellar cKellar cKellar ane C ane C linch R linch R linch R umberland umberland umberland umberland iver iver iver iver iver iver ennessee ennessee ix A.ix S Receiving Water T R R C C R T R C C R C R C C M Lake C M Lake C M Lake d ar ) ) ) L)

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Disch A 30 Outside the Law G C John S John G C ( G G Johnsonville TN C phreys (H Johnsonville S John C (H S John Kingston Johnsonville Kingston TN C (R Kingston TVA Facility S ounty, TN ounty, umberland ounty, ounty, TN ounty, ounty, ounty, allatin allatin allatin allatin umner umner oane oane um- awkins awkins ) ) evier evier evier ) ) R C R H R C R C R C R C R H R T R H R T C R T C C Water Receiving ennessee ennessee ennessee ennessee ennessee ennessee iver iver iver iver iver iver iver iver iver iver iver umberland umberland umberland umberland umberland umberland umberland umberland umberland linch R linch linch R linch linch R linch olston olston olston olston olston olston iver iver iver 2004 M 2008 O 2004 M 2004 M 2008 O 2008 S S 2008 2002 D S 2002 D 2008 2002 D Tion Applica- Permit Date of ept. ept. ept. ept. ept. ept. ec. ec. ec. ec. ec. ec. ct. ct. ct. ct. ay ay ay 2008 D 2008 D 2008 S DMR Date of ept. ept. ec. ec. ec. ec. (001) A (001) A (001) A (001) S S (001) S (001) A (001) (001) A (001) A S (001) (001) A (001) A (001) A (001) A (Outfall) Pollutant elenium elenium elenium elenium elenium elenium elenium elenium rsenic rsenic rsenic rsenic rsenic rsenic luminum luminum luminum ntimony ntimony rsenic rsenic rsenic rsenic luminum F F F F WQC forAquatic 750; F 750; 750; F 750; 750; F 750; 750; F 750; reshwater A reshwater reshwater A reshwater reshwater A reshwater reshwater A reshwater Recommended C C C C F F F F C C C C reshwater reshwater reshwater reshwater reshwater reshwater reshwater reshwater hronic: 87 hronic: hronic: 87 hronic: hronic: 87 hronic: hronic: 87 hronic: hronic: 5 hronic: hronic: 5 hronic: hronic: 5 hronic: hronic: 5 hronic: USEPA reshwater reshwater reshwater reshwater reshwater reshwater reshwater reshwater Life Water QualityCriteria (WQC) (µg/L) cute: cute: cute: cute: cute: cute: cute: cute: Health From Fish WQC forHuman Recommended Consumption 5 USEPA 0.14 0.14 0.14 0.14 0.14 Average (µg/L) 1,400 Term Long N N N N N N N N N 44 26 10 18 / / / / / / / / / A A A A A A A A A Discharge Reported Maximum (µg/L)² 1,700 1,500 Daily 990 480 90 40 40 7.3 20 98 22 34 39 45 ³ 31 Outside the Law ³ 6 4 13 31 55 19 23 24 Daily 1,300 2,100 1300 1,800 1200 2,600 2,400 2,000 55,000 (µg/L)² Maximum Reported Discharge A A A A A A A A A A A A A / / / / / / / / / / / / / 36 650 N N N N N N N N N N N N N Long Term Term (µg/L) Average Average 100 0.14 0.14 0.14 USEPA 5 Consumption Recommended Recommended WQC for Human Health From Fish Health From cute: cute: cute: cute: (WQC) (µg/L) Water Quality Criteria Quality Criteria Water Life reshwater reshwater reshwater reshwater USEPA hronic: 5 hronic: 5 hronic: 5 hronic: 87 hronic: 87 hronic: 87 hronic: 87 reshwater reshwater reshwater reshwater reshwater reshwater C C C F F F F F F hronic: 1000 hronic: 1000 hronic: 1000 C C C C C C C Recommended reshwater A reshwater A reshwater A reshwater A 750; F 750; F 750; F 750; F WQC for Aquatic F F F F anganese luminum luminum luminum rsenic rsenic luminum luminum luminum luminum rsenic elenium elenium elenium ron (007) ron (002) ron (001) ron (005) Pollutant (Outfall) A (001) S (001) M (007) A (007) A (002) A (007) I I S (001) A (001) S (001) I A (001) A (005) I Date of DMR ec. ec. ec. ec. ec. pr. pr. pr. pr. pr. pr. pr. pr. pr. pr. pr. pr. ebruary ebruary Date of Permit Applica- Tion F 2002 F 2002 D 2002 D 2002 July 2005 D 2002 D 2002 July 2005 D 2002 A 2004 A 2004 A 2004 A 2004 A 2004 A 2004 reek reek iver iver iver iver iver iver iver hio R hio R linch R linch R linch R linch R linch R iver iver iver iver iver iver ennessee ennessee ennessee ennessee ennessee ennessee Receiving Water Jacobs C Jacobs C O C C O C C C T R T R T R T R T R T R

ounty, raken C c uhlen- ) ) idows idows idows idows idows idows Y Y reek reek reek reek ounty, reek reek ounty, L) aradise aradise TVA Facility TVA K P Shawnee (M C K P (M berg C Kingston Kingston Shawnee Kingston Kingston W C (Jackson C A W C W C W C Kingston W C W C 32 Outside the Law 3 usePArequireslevelsforarsenicandchromium(VI)tobeexpressed 2 1 N otes C W C W C W C W C W C W C W C W C W C W C W TVA Facility , orzinc. dependant metals,namelycadmium, chromium(III),copper, lead, nickel, We havenotyetreviewed dischargedataforexceedancesofhardness- metals isone(1),sonumbersrepresentdissolvedlevels. instead oftotaldissolvedmetals,theconversionfactorto html#appendxa. For arsenic,although thedataprovidedtotalrecoverable Metals, http://www.epa.gov/waterscience/criteria/wqctable/index. Water QualityC in termsofdissolvedmetals.SeeUSEPA,NationalRecommended Discharge MonitoringReports(DR). All dataisfromNPDESpermitapplicationssubmittedtoUSEPA,orTVA’s reek reek reek reek reek reek reek reek reek reek reek idows idows idows idows idows idows idows idows idows idows idows idows idows idows idows idows idows idows idows idows idows riteria, AppendixA—C C W R T C W R T R T R T C W R T R T R T C W Water Receiving ennessee ennessee ennessee ennessee ennessee ennessee ennessee ennessee ennessee ennessee ennessee ennessee ennessee iver iver iver iver iver iver iver reek reek reek reek idows idows idows idows idows idows idows idows 2004 A 2004 A 2004 A 2004 A 2004 A 2004 A 2004 A 2004 A 2004 A 2004 A 2004 A Tion Applica- Permit Date of pr. pr. pr. pr. pr. pr. pr. pr. pr. pr. pr. onversion Factors forDissolved DMR Date of (013) A (013) M S (008) (008) M (008) A (008) A I (007) A (005) M I (006) M (Outfall) Pollutant ron (007) ron ron (006) ron elenium elenium luminum rsenic rsenic luminum rsenic rsenic anganese anganese anganese anganese anganese anganese anganese anganese thisreadingmaybelesstoxicthannormalasthepHforthiswas 6 u.SEPAwaterqualitycriteriastandardsaremeanttoprotectreceiving 5 thisreadingmaybemoretoxicthannormalasthepHforthis 4 WQC forAquatic of 6.5to9.0.Seenote4,supra. between 7.0and9.4whereasUSEPA’s limitassumesapHforaluminum from outfalls. waters, anddonotnecessarilyapplytotheactualdischargeofwastewater Non-Priority Pollutants,footnoteL. more toxic.SeeUSEPA,NationalRecommendedWater QualityC less toxicathigherpH,”sothislowermaymeanthereadingiseven aluminum of6.5to9.0.USEPAprovidesthat“aluminumissubstantially was between5.9and6.5whereasUSEPA’s limitassumesapHfor Recommended C C C C hronic: 1000 hronic: hronic: 1000 hronic: F F F F F C reshwater reshwater reshwater reshwater reshwater reshwater reshwater reshwater reshwater reshwater hronic: 87 hronic: hronic: 87 hronic: hronic: 5 hronic: USEPA Life Water QualityCriteria (WQC) (µg/L) Health From Fish WQC forHuman Recommended Consumption 5 USEPA 0.14 0.14 100 100 100 100 Average (µg/L) 2,200 2,200 Term Long N N N N N N N N N / / / / / / / / / A A A A A A A A A Discharge Reported Maximum (µg/L)² 4,300 1,400 2,300 2,500 1,300 1,300 Daily 480 130 131 19 riteria, 4 ³

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