NASHVILLE, Tenn. -- A NewsChannel 5 investigation has discovered that the Tennessee Valley Authority actually wanted the state to sue when it became clear that the agency was about to be sued by an environmental group.
Some environmental groups now question whether Tennessee's commissioner of environment is protecting the TVA. Robert Martineau now heads the agency that, in his previous life as a corporate lawyer, he would often fight in court.
"My job is to do what is in the best interest of the state in this role," Martineau said.
Before Tennessee Gov. Bill Haslam appointed Martineau to head the Tennessee Department of Environment and Conservation (TDEC), Martineau spent 16 years in private practice often defending businesses cited for polluting.
NewsChannel 5 Investigates asked Martineau, "Is there a conflict of interest here?"
Martineau responded, "I spent seven years working for the United States Environmental Protection Agency, so some in industry might say I am biased toward the EPA because I was a regulator in my prior life."
Martineau pointed to his earlier years working at the EPA as proof that he's unbiased.
But after four years on the job at TDEC, his oversight of one of his largest former clients is raising questions.
"I represented TVA on a wide variety of matters," Martineau said. "And I'm prohibited by the rules of professional conduct to disclose particular client confidences."
Martineau was lead counsel for TVA when it was sued by the state of North Carolina for polluting the air -- allegedly making people there sick.
The lawsuit began in 2006 and lasted for years.
Axel Ringe with the Sierra Club claims that TDEC looks the other way when it comes to polluting by TVA.
"His resume did concern me," Ringe said. "My concern is: is TDEC is protecting TVA?"
So environmental groups decided to take action on their own by filing a notice of intent to sue TVA for polluting the Cumberland River at TVA's Gallatin Fossil Plant.
That lawsuit would have been in federal court.
But TDEC decided to sue TVA on its own, blocking the lawsuit by environmental groups.
TDEC's lawsuit moved the case out of federal court where fines could have been $37,500 per day and into state court where fines are much lower at $10,000 a day.
NewsChannel 5 Investigates asked Martineau, "Why move it to a place where the fines are lower?"
"The issue is not about fines," Martineau answered. "The issue is about taking corrective action."
NewsChannel 5 has learned that TVA attorneys told TDEC they actually preferred to have the department step in and sue. And TDEC confirmed that a TVA attorney told them "he would rather be regulated by TDEC than by a federal judge."
"Do you think it's odd that TVA wanted you to sue them?" NewsChannel 5 Investigates asked Martineau.
"I don't know that's the case," he said.
"So that's not what you take from this statement?" we followed.
Martineau said, "I think the statement is they'd rather be dealing with us than a federal judge."
TVA may prefer to deal with the state because TDEC has known about violations at the Gallatin plant for years but had not taken action.
TVA's own inspector general report admitted serious violations at the Gallatin plant in 2011 and said that TDEC's policy is to issue a Notice of Violation, but TDEC personnel chose not to.
NewsChannel 5 Investigates asked the commissioner, "Is there a culture here at TDEC that is lenient toward TVA?"
Martineau responded, "I think my answer is we filed a lawsuit against TVA or the Attorney General filed a lawsuit against TVA for these alleged violations."
The Southern Environmental Law Center filed the notice of intent to sue TVA on behalf of environmental groups. Attorney Beth Alexander said violations at the Gallatin plant are serious.
"We've also identified a number of places where ash is leaking into the river," Alexander said.
From Sky5-HD, Alexander pointed our areas where they believe pollution from coal ash ponds is leaking into the Cumberland River.
She said the state has not taken action.
"The Tennessee Department of Environment and Conservation has done nothing to require TVA to comply with the permit," Alexander said.
TVA took us on a tour of the Gallatin plant and showed the hundreds of millions of dollars in upgrades it has made to the ash ponds, as well as the investment in a future dry ash landfill for coal ash.
Their plan is to close all the ash ponds.
TVA officials admitted that one area, specifically one monitoring well, is leaking metals into the Cumberland River, but Vice President John Kammeyer said that area should be fixed by the summer.
But summer is months away -- the potential fines could have been tripled each day if the lawsuit were left in federal court.
TVA said water coming out of its ash ponds is cleaner than the water in the Cumberland River.
But environmental groups say the plant has polluted the river for too long
"To me, the citizens are being shortchanged," Ringe said.
At a time when he says oversight is needed, Ringe questioned whether a man who used to represent TVA is the right person.
NewsChannel 5 Investigates asked Martineau, "Are you still representing TVA in this job?"
"The answer to that is absolutely not," Martineau insisted.
The state said environmental groups can be part of their lawsuit, but the case will be tried in Davidson County Chancery Court instead of federal court.
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