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RALEIGH, N.C.--The Tennessee Valley Authority is liable for damages to property owners and residents affected by the 2008 spill of 5.4 million cubic yards of coal ash slurry from its facility in Kingston, Tenn., the U.S. District Court for the Eastern District of Tennessee ruled Aug. 23 (In re Tennessee Valley Authority Ash Spill Litig., E.D. Tenn., No. 3:09-cv-9, 8/23/12).
According to the district court, were it not for TVA's “nondiscretionary conduct,” the dike failure would not have occurred. Therefore, the power authority is liable for damages to the individual plaintiffs under negligence, trespass, and private nuisance claims, the federal court said.
During the next phase of proceedings, the court said plaintiffs must individually show they are entitled to relief such as monetary compensation. The plaintiffs' claims regarding negligence per se, recklessness, strict liability, and public nuisance were dismissed by the court.
The December 2008 spill from the coal-fired power plant in Kingston followed the failure of a retaining wall at one of the plant's ash impoundments. The incident brought national attention to the issue of combustion residuals from coal-fired power plants (40 ER 16, 1/2/09).
The spill led the Environmental Protection Agency to issue a proposed rule in 2010 to update regulation of coal ash. Under one of the options EPA put forward, coal ash would be regulated under the hazardous waste provisions of the Resource Conservation and Recovery Act. A second option would leave coal ash regulated under nonhazardous waste provisions of RCRA, with states taking the lead role. EPA has not yet issued a final rule.
Following the spill, dozens of lawsuits were filed by individuals who reside or own property near the accident site. According to the district court, its ruling covers more than 60 separate cases filed with it that involve more than 800 plaintiffs.
Affected plaintiffs generally claim that the failure of the Kingston facility's coal ash containment dike and resulting spill of slurry from the plant's storage area was caused by TVA's negligence. The authority's failure to design, build, operate, maintain, and inspect the coal ash storage and disposal facilities caused them injuries and damages, the plaintiffs alleged.
The U.S. District Court for the Eastern District of Tennessee previously has limited certain claims by the plaintiffs, dismissed punitive damage claims, and rejected their request for a jury trial (Mays v. Tennessee Valley Authority, E.D. Tenn., No. 3:09-cv-6, 3/26/10; 41 ER 738, 4/2/10).
The court also ruled on additional issues regarding personal injury and emotional distress and other tort claims (In re Tennessee Valley Authority Ash Spill Litig., E.D. Tenn., No. 3:09-6, 8/2/11; 42 ER 1818, 8/12/11).
In August 2011, the district court agreed to separate the litigation into two phases. During the first phase, the court said it would consider issues and evidence related to duty, breach, and dike failure causation and, if needed, the second phase would involve issues over tract-specific causation and what damages may be due to each individual plaintiff.
According to the district court, TVA's selection of the location of the dike that failed and the way the authority designed it was “nondiscretionary conduct” and was not subject to protection from liability for negligence under the discretionary function doctrine.
TVA's failure to adequately inform its employees of applicable policies and procedures also contributed to the failure of the retaining wall, the court said.
The court said that plaintiffs also have proven that “had TVA followed its own mandatory policies, procedures, and practices, the subsurface issues underlying the failure of North Dike would have been investigated, addressed, and potentially remedied before the catastrophic failure of December 22, 2008.”
Therefore, the district court said, the power authority is liable for damages to the individual plaintiffs under negligence, trespass, and private nuisance claims. However, the court dismissed claims regarding negligence per se, recklessness, strict liability, and public nuisance.
During the next phase of the litigation, each of the plaintiffs must individually prove, “by a preponderance of the evidence,” the respective negligence, trespass, or private nuisance claims, the court said. As to why individual consideration was appropriate, the court said “while these cases involve common questions of general causation, these common issues do not predominate over individual questions of causation.”
In an Aug. 23 statement provided to BNA, TVA said it has been committed to “clean up the spill, protect the public health and safety, restore the area, and, where justified, fairly compensate the people who were directly impacted.”
TVA said it “remains committed to the full restoration of the community directly impacted by the spill, while being mindful of our responsibility to manage ratepayer dollars.”
The authority said it already has purchased more than 180 properties and settled more than 200 other claims submitted by area residents, as well as given $43 million to a community foundation.
“TVA has taken responsibility for what happened and is committed to restoring the Kingston area,” the utility said. The power authority said ongoing recovery project is expected to be completed in 2015.
The ruling by the U.S. District Court for the Eastern District of Tennessee in In re Tennessee Valley Authority Ash Spill Litig. is available at http://op.bna.com/env.nsf/r?Open=smiy-8xfst9.
More information on the authority's cleanup efforts is available at http://www.tva.gov/kingston.
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