TVA’s Defense Against Coal Ash Spill Lawsuits Goes to Trial in Knoxville Federal Court

 (Washington Post 9-20-2011) A federal judge on Thursday began hearing from both sides in the legal battle over whether the Tennessee Valley Authority should pay damages for a huge coal ash spill that fouled a riverside community.
At a brief opening session, TVA attorney Edwin Small told U.S. District Judge Thomas Varlan that TVA would land a helicopter in downtown Knoxville if he wanted to visit the spill site.
The judge, who ruled on several pending motions, said he understood the offer and would keep it in mind during the two-week bench trial on five lawsuits that cover more than 230 plaintiffs. The trial resumes Monday. Other lawsuits are set for trial in November.
The Environmental Protection Agency has described the spill as “one of the worst environmental disasters of its kind.”
TVA has been cleaning up since the Dec, 22, 2008, collapse of an earthen dam spilled 5.4 million cubic yards of sludge from a storage pond at the utility’s coal-fired Kingston Plant on the Emory River about 40 miles west of Knoxville.
“It’s kind of like going out there and looking at a car that has been wrecked after it has been repaired,” plaintiff attorney Jeff Friedman of Birmingham jokingly told the judge.
Plaintiffs’ attorneys said there are more than three million pages of documents filed in the case and that their side would be based mostly on TVA records.
The spill ruptured a natural gas line, disrupted power and transportation, ruined three homes and forced the evacuation of the nearby residential community in Roane County. Nearby residents said the spill ruined quiet country living focused on fishing, boating and being outdoors.
Coal ash — which contains arsenic, selenium, lead and mercury — can pose health risks but has not been regulated as hazardous.
Less than a month after the spill, as the Obama administration was preparing to take office, incoming EPA administrator Lisa Jackson promised to review that stance and suggested it would take months, not years. The agency has yet to issue any new regulations.
TVA has estimated the cleanup, which isn’t finished, will cost $1.2 billion. The utility is self-funding, so ratepayers in the seven-state region are paying the tab with higher electric bills.
The judge has agreed that TVA, as a federal agency, is protected from some liability claims. TVA also contends that under Tennessee law it has no legal duty to keep its reservoirs and shorelines safe for the plaintiffs’ recreational use and enjoyment. TVA has said plaintiffs have not shown that ash particles were transmitted to their properties in “concentrations sufficient to cause property damage and/or personal injury or to constitute a taking.”
While hundreds of people have stakes in the court fight, the first trial will deal only with liability. A Nov. 1 trial will individually decide any damages.
Plaintiffs’ attorneys, who said they cannot comment about the case, have others waiting to possibly file lawsuits before the opportunity to pursue a claim runs out in December.
“Our clients are looking forward to our day in court,” said plaintiffs” attorney Elizabeth Alexander of Nashville.
TVA attorneys have not responded to requests for comment from The Associated Press.
Before the trial, the judged granted TVA motions to dismiss claims for punitive damages, personal injury, emotional distress and inverse condemnation. He has allowed claims for property damages, trespass and nuisance to go forward.
TVA said in a statement before the trial it is “committed to restoring the Kingston area, and we are following through on our pledge to clean up the ash while protecting public health and safety.”
The utility’s statement said its work with the community includes removing more than 3.5 million cubic yards of ash and sediment from the Emory River, providing health screenings on request to affected residents, and giving $43 million to a Roane County foundation for community betterment.
TVA has also announced plans to develop public recreation areas and ball parks, greenways, walking trails and boat ramps in the spill-affected area.
And the utility has pledged to convert to dry storage the coal ash at all of its 11 coal-powered plants in Alabama, Kentucky, Mississippi and Tennessee.
TVA, which was created in the 1930s to build dams and bring electricity to the impoverished Appalachian region, produces about two-thirds of its electricity from coal power. It has a long-term plan to get more power in the future from nuclear facilities.
TVA’s statement said it has purchased more than 180 properties and settled more than 200 other claims from people living near the spill.
Property owners who have settled with TVA had to agree not to sue or publicly discuss the settlements.
Neighbor Loretta Smith, 57, of Lyons, Ill., an affected property owner who has not been offered a settlement, is keeping a close watch on the trial. She and her husband had once planned to retire on 25 acres they bought years before the spill.
The couple was trying to sell the land for $225,000 and then buy a house in the community when the sludge spilled. She said the property is on a creek less than a mile from the river and the sludge came into a cove and the creek at the edge of her property. She said TVA has bought property all around them.
Smith said there are no buyers and that she and her husband are now stuck with $600-a-month payments on their land, plus taxes. She said TVA has never called or written and won’t return their calls.
“I’m actually very excited that it’s finally going to come to some closure as soon as possible. It’s been three years and we’re still waiting,” Smith said Wednesday. “Just because they are part of the government doesn’t mean they should be able to get away with destroying people’s lives and dreams.”
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