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EIP REPORT: TVA, ONE OF NATION'S TOP POLLUTERS, SHOULD NO LONGER BE ALLOWED TO EXPLOIT FEDERAL STATUS TO EVADE ENVIRONMENTAL LAWS AND MARKETPLACE COMPETITION
As 1st Anniversary of Kingston Coal Ash Spill Nears, EIP Report Exposes TVA's Pollution, Poor Environmental Track Record, and Reveals How TVA Avoids Compliance with Federal Environmental Laws; EIP and Top Groups Call on White House to Reform TVA.
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WASHINGTON, D.C.///December 14, 2009///Eight decades after President Franklin Delano Roosevelt created the Tennessee Valley Authority (TVA) to bring power to the southeastern United States, the TVA should no longer be exempt from federal environmental enforcement and the healthy influence of competition in its region, according to a major new report released today by the nonprofit Environmental Integrity Project (EIP).
In a separate letter to the White House, EIP and leading national and southeastern U.S. environmental organizations urged the Obama Administration and Congress to take action to reform the TVA. (See below.)
The new EIP report -- titled "Outside the Law: Restoring Accountability to the Tennessee Valley Authority" – details how the TVA has emerged as one of the nation's worst polluters by exploiting its special status as a federal corporation to sidestep federal regulation, avoid fines that other utilities are required to pay, and delay solutions to known environmental problems at Kingston and other TVA coal plants. Although both the Environmental Protection Agency (EPA) and the TVA Inspector General (IG) have documented numerous violations of environmental law, the Justice Department has never taken this utility to court. Although this utility is virtually independent, completely self-financing, and responsible under the law for its own legal defenses, it has been allowed to hide behind legal doctrines meant to protect federal agencies and U.S. taxpayers.
The EIP report notes: "... the evidence in this report reveals that the Kingston spill is only the latest and most dramatic example of environmental mismanagement at one of the nation's largest utilities. President Roosevelt established TVA nearly eighty years ago as a public utility dedicated to progressive management on behalf of the public interest, but TVA's environmental record and conduct in recent years mock the vision that inspired its founding."
In releasing the new report, Environmental Integrity Project Director Eric Schaeffer said: "It is time to reform the Tennessee Valley Authority and make it fully accountable for environmental misconduct. Any other utility that spilled a billion gallons of coal ash into a river would face certain federal prosecution, but the Justice Department won't file a case against TVA. Legal doctrines that limit enforcement actions against other federal agencies shouldn't apply to this behemoth, which by law is completely responsible for its own legal defenses, and which is financed by its own ratepayers, not the U.S. Treasury. It's time for TVA to be treated like its competitors, and to expect prosecution for violating environmental laws."
The EIP report points out:
- TVA's own Inspector General found that TVA negligence contributed to the Kingston disaster, and that TVA avoided full transparency to limit litigation following the spill.
- TVA intended to transition its coal waste ponds from wet-to-dry systems over 20 years ago, a move that could have averted the coal ash disasters at both Kingston and Widows Creek and curb TVA's harmful water discharges. However, no such action was taken and TVA reported to EPA that it discharged 3,433,291 pounds of toxic pollutants into surface waters in 2008 alone.
- The TVA IG also found that TVA bypassed air emission controls at the Cumberland, Widows Creek and Bull Run coal plants, resulting in well over a thousand tons of illegal emissions. According to the IG reports, TVA delayed fixing the problem or reporting the emissions to regulatory authorities.
- TVA is home to some of the oldest and least efficient coal plants in the U.S., and spends less on maintenance than many of its competitors. Unlike some utilities, there is little evidence that TVA is making the transition toward cleaner, low carbon source of electricity—its recalcitrance may be aided by federal law that prohibits competition within TVA's service area.
- Equally troubling, TVA repeatedly invokes its status as a "federal" agency to avoid responsibility for its own environmental misconduct. TVA raises issues of federal "sovereign immunity" to avoid penalties in environmental enforcement cases filed by citizens in federal court, yet TVA does not receive federal funds or tax dollars drawn from the U.S. Treasury. Limitations on the ability to recover penalties from federal agencies are supposed to protect the taxpayer— but TVA is completely self-financing, and has not received federal appropriations in decades; any fines paid by TVA need not come from the U.S. Treasury.
Robert Dreher, senior vice president for conservation law and climate change, Defenders of Wildlife, said: "Even looking beyond TVA's recent coal ash spills and troubling record of environmental mismanagement, TVA should not be able to undermine the integrity of the legal process by claiming immunity to the enforcement of environmental laws. No corporation or agency should be above the law, especially at the expense of the environmental well-being of our citizens, wildlife and waters."
Renée Victoria Hoyos, executive director, Tennessee Clean Water Network, said: "TVA needs reform. The disaster of December 22, 2008 and the subsequent handling of the issue demonstrated to us that TVA must be formally regulated by the US EPA like any other utility. I hope that this Administration will implement the recommendations of this report. It is simply the right thing to do."
A separate letter sent today to the White House by EIP and over a dozen additional groups, including the Sierra Club, Defenders of Wildlife, Natural Resources Defense Council, Appalachian Voices, Tennessee Clean Water Network, Waterkeeper Alliance, Inc., Tennessee Environmental Council, United Mountain Defense, Cumberland Stewards, and Solar Valley Coalition, urges President Obama to take action to reform TVA.
The joint letter states: "We write to respectfully request that your Administration clarify that TVA is not immune from federal prosecution for the Kingston spill and other violations of federal law. We ask also that the Directors you appoint to lead TVA pledge to take specific actions to reform the agency and reduce its reliance on dirty coal-fired power plants … TVA has become little more than giant electric utility unchecked by the regulatory agencies that manage electric power production and protect the public in most of the rest of the country. The Kingston coal ash spill is only the latest and most dramatic example of environmental mismanagement at one of the nation's largest utilities."
The full text of the joint letter to the Obama White House is available online at http://www.environmentalintegrity.org.
RECOMMENDED ACTION STEPS
The EIP report recommends the following steps to restore accountability at the TVA:
- Clarify that EPA and the Justice Department Can Take TVA to Court. A directive from the White House, clarifying that the "unitary executive" theory does not prevent EPA and DOJ from taking enforcement action against TVA will help bring TVA into compliance with federal environmental laws and resolve environmental violations that have lingered for years.
- Support Legislation to Eliminate TVA's Special Protections. The White House and Congress should support legislation to remove TVA's special protections, such as immunity from penalties for environmental violations, and anti-competitive measures that keep rival utilities out of its service area. TVA no longer relies on tax dollars or federal appropriations and therefore, should be as accountable as any other utility for its environmental wrongdoing.
- Increase Environmental Oversight. Congress can play a critical role in reforming TVA through its oversight authority. The House and Senate Committees charged with TVA oversight have held multiple hearings regarding the Kingston spill, but long-term oversight of TVA's environmental management is needed to prevent another disaster and transform TVA into a national example of environmental sustainability and clean energy production.
The EIP report recommends the following steps to reduce TVA's environmental footprint:
- Create a Culture of Environmental Compliance. TVA's large and dirty environmental "footprint" is a product of its internal culture of neglect and cost-saving decisions made at the expense of the environment. Even TVA's own inspector general reported that TVA's "litigation strategy seems to have prevailed over transparency and accountability," after the Kingston spill. However, the President has an opportunity to change TVA's internal culture from the top down, starting with the appointment of new leadership to TVA's Board of Directors. As of December 2009, President Obama named two new nominees to TVA's nine-member Board of Directors. New Board nominees should pledge to take the specific actions below to establish greater transparency and environmental compliance at every level of TVA's operations.
- Switch From Wet to Dry Coal Waste Disposal and Stop Toxic Discharges. TVA must transition its wet CCW storage ponds to dry disposal systems in the immediate future. TVA promised to make this transition over 20 years ago and recently promised again to convert its wet CCW ponds to dry storage after the Kingston spill. Yet TVA owns wet coal waste impoundment at all of its coal plants, and still has not produced a timeline by which each plant will transition from wet to dry, zero-discharge systems in the near future.
- Transition from Coal to Clean, Renewable Energy. TVA must decide whether to make investments in its aging coal-fired fleet or simply retire the oldest, most underperforming units.
To see the full text of the EIP report, go to http://www.environmentalintegrity.org on the Web.
The Environmental Integrity Project (http://www.environmentalintegrity.org) is a nonpartisan, nonprofit organization established in March of 2002 by former EPA enforcement attorneys to advocate for effective enforcement of environmental laws. EIP has three goals: 1) to provide objective analyses of how the failure to enforce or implement environmental laws increases pollution and affects public health; 2) to hold federal and state agencies, as well as individual corporations, accountable for failing to enforce or comply with environmental laws; and 3) to help local communities obtain the protection of environmental laws.
CONTACT: Patrick Mitchell, (703) 276-3266 or email@example.com.
EDITOR'S NOTE: A streaming audio replay of the news event will be available on the Web at http://www.environmentalintegrity.org as of 6 p.m. EST on December 14, 2009.