Judge Assigns Liability in Coal Ash Calamity

     (CN) – A “catastrophic” coal ash spill in Tennessee could have been prevented with better adherence to inspection and maintenance procedures, a federal judge ruled.
     More than 800 individuals sued the Tennessee Valley Authority after a coal ash containment dike at its Kingston Fossil plant burst in December 2008, causing 5.4 million cubic yards of ash sludge to spill into a nearby river and contaminate hundreds of acres of government and privately owned land.
     The Kingston Fossil plant, a coal-fired electricity generation facility, has been producing and storing coal ash, a byproduct of coal-based electricity generation, since 1954.
     There are no coal ash disposal rules in place, but the Environmental Protection Agency has recently proposed regulations for handling the process, which deals with arsenic, cadmium, lead, mercury and other metals.
     In more than 60 lawsuits, property owners from the affected riverside community claimed that TVA’s negligent design, operation, and maintenance of the plant’s coal ash storage and disposal facilities caused the dike failure and resulting spill. They sought damages for alleged injuries and property loss.
     The Eastern District of Tennessee refused to certify a class and dismissed some allegations, but green-lit claims of negligence, trespass and private nuisance.
     After looking at evidence relating to the failure of the dike in a first phase of the consolidated lawsuits, the court found TVA liable for the toxin-laden sludge spill.
     U.S. District Judge Thomas Varlan said that TVA’s negligent conduct combined with geological factors contributed to the failure of the dike.
     “The court concludes that but for the confluence of these physical and geological factors and the movement of the slimes layer which triggered the dike failure sequence, the coal ash spill that is the subject of this litigation would not have occurred,” according to the 130-page opinion.
     Varlan said Thursday that the discretionary function doctrine did not shield TVA from liability, because TVA’s negligent nondiscretionary conduct, such as its failure to train personnel, conduct proper annual inspections and apply its own policies, had caused the ultimate failure of the dike.
     “More specifically, plaintiffs have proved, by a preponderance of the evidence, that TVA’s conduct in regard to its mandatory policies, procedures, and practices for coal ash management compounded the location, design, and operation causes discussed above that were the but for causes of the failure, and 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,” Varlan wrote.
     In the 1960s, TVA used a low-strength mixture of clay and coal ash to construct the affected perimeter dike, and continued to raise its elevation to increase the storage capacity of the coal ash disposal area. TVA’s in-house lab confirmed that the dike did not comply with TVA’s design and construction plans and had structural weaknesses, the court found.
     But TVA continued to raise interior dikes to maximize storage capacity and failed to consolidate the wet ash underlying the dikes, despite previous blowouts, engineering recommendations and annual inspection reports that warned about possible dike failure, the ruling states.
     Some engineering reports found that “TVA engineers conducted annual inspections, but did not follow up on the recommendations until the next annual inspection, often repeating the same recommendations year after year,” according to the ruling. “In practice, there was no ultimate authority in charge of the byproducts ponds until remediation was commenced after the [KIF plant] spill.” (Brackets in ruling.)
     Expert witnesses, who noted that TVA was “asleep at the switch,” concluded that TVA did not properly train its engineers and staff to perform annual and daily inspections at the plant. The workers also failed to monitor water levels, and improperly maintained TVA facilities, according to their testimony.
     The next phase of litigation will determine damages on a case-by-case basis, according to the ruling.
     Varlan asked the parties to submit recommendations for handling the next phase of the case.
     TVA, the largest public utility in the United States, serves customers in Tennessee and six other southeastern states.
     “TVA remains committed to the full restoration of the community directly impacted by the spill, while being mindful of our responsibility to manage ratepayer dollars,” TVA said in a statement.
     “TVA has purchased approximately 180 properties and settled more than 200 other claims submitted by area residents. TVA also provided $43 million to the Roane County Economic Development Foundation for use by communities in the affected area. TVA has taken responsibility for what happened and is committed to restoring the Kingston area. We are following through on our pledge to clean up the ash while protecting public health and safety. The recovery project is expected to continue through 2015.”

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