Washington, D.C. —

Five years after the nation’s largest coal ash spill, the Tennessee Valley Authority—owner of the Kingston Power Plant in Tennessee, where the spill occurred—now seems to be ignoring its own promise to convert its many wet coal ash disposal ponds into safer dry landfills.

The about-face was disclosed in the testimony of a TVA representative on Oct 15, 2013, at a hearing before the Board of Water Quality, Oil and Gas in Tennessee. The case involved an appeal of a permit granted to TVA brought by Earthjustice on behalf of Tennessee Clean Water Network and Southern Alliance for Clean Energy. At the hearing, Sam Hixson, TVA corporate representative and regulatory manager for waste, testified about TVA’s retreat from the oft-repeated TVA pledge to move to dry disposal. Read a draft copy of the transcript of that hearing.

Hixson said repeatedly that the commitment to cease wet dumping was the doing of the past CEO, Tom Kilgore, based on safety considerations that came to light as a result of the Kingston spill. Mr. Hixson pointed out that such conversion is not currently required by regulations. He clearly testified that the ponds may not be fully closed until an EPA rule concerning coal plant wastewater is finalized, and that TVA is considering building new ponds as one of the possible technologies for treating wastewater after the new rule is issued. In any event, he stated that TVA would wait until the issuance of the EPA rule before they made decisions on what to do with their ponds.

At the October hearing, Hixson stated that the conversion may “be delayed by delay of the regulations.” He reiterated that the pond was “not being closed by a regulation. It’s being closed because our former CEO elected to do that.” Hixson’s testimony can be found on page 84 of the draft transcript.

This statement directly contradicts previous TVA commitments to convert their wet coal ash disposal sites, where earthen dams impound hazardous sludge, to safer dry landfills and came just weeks before the five-year anniversary of the nation’s biggest coal ash spill. In 2009, then-CEO Tom Kilgore, promised to convert all TVA ponds in 8-10 years. TVA’s fact sheet on conversion also says nothing about the change in position.

“What began as a mission to dramatically improve public safety is now a wait-and-see approach,” says Lisa Evans, senior administrative counsel for Earthjustice. “It appears few lessons were learned from the disaster.”

Just after midnight on December 22, 2008, a massive coal ash impoundment burst through an earthen wall and spilled over a billion gallons of the toxic sludge across the Clinch and Emory Rivers and the surrounding neighborhoods. Two dozen homes were damaged or destroyed. Miraculously, no one was injured. Residents said that had the spill occurred during the spring or summer, when boaters, fishermen, swimmers and families spent time on the rivers, the injury tally would certainly have been much higher.

The Tennessee Valley Authority then embarked on a $1.2 billion cleanup plan, a cost borne by ratepayers. Subsequent inspections of 24 wet impoundments at 11 TVA plants in 2009 by TVA consultants revealed serious stability issues at 12 of the 24 impoundments in Kentucky, Tennessee, and Alabama, which necessitated engineering changes conducted between 2009 and 2013.

“TVA was the cause of one of our nation’s greatest environmental disasters, yet they seem to be retreating from their commitment to solve the problem,” Evans said. “Without proper storage and monitoring, it’s not a matter of if another spill will happen, it’s a matter of when.”