Federal Court Holds TVA Liable for Kingston Coal Ash Spill

A federal district court on Thursday ruled in favor of more than 800 plaintiffs when it held the Tennessee Valley Authority (TVA) liable for the December 2008 failure of coal ash containment dikes at its Kingston Fossil plant in Roane County, Tenn., that resulted in the spill of more than a billion gallons of coal ash sludge.

The August 23 ruling finds that TVA did not build the holding ponds according to plan, did not train its inspectors how to inspect the stability of the dikes, and did not properly maintain the facility to prevent failure of the dikes. It allows litigation stemming from the Dec. 22, 2008, spill—involving more than 60 cases mostly from residents or business owners near the plant—to proceed to a second round to determine damages.

In the decision handed down by Judge Thomas Varlan, the U.S. District Court Eastern District of Tennessee concluded that the nation’s largest public utility failed to inform and train personnel in TVA’s mandatory policies, procedures, and practices for coal ash management. “TVA personnel’s negligent performance of the same—specifically, TVA’s policy, procedure, and practice of conducting annual dike stability inspections and TVA’s undertaking of ongoing maintenance of North Dike—were also substantial contributing causes of the failure of North Dike,” it says.

Plaintiffs 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” of the failure. 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,” the court ruled.

The court held TVA liable for damages to the individual plaintiffs under negligence, trespass, and private nuisance claims, but it dismissed plaintiff claims regarding negligence per se for violation of federal laws, including Resource Conservation and Recovery Act (RCRA) and the Clean Water Act, and several state environmental statutes. It also dismissed allegations of recklessness, strict liability, and public nuisance.

The federal court had in 2010 limited certain claims by plaintiffs, dismissed punitive damage claims, and rejected requests for a jury trial. But in August last year, it granted summary judgment in favor of TVA on plaintiffs’ personal injury, emotional distress, and inverse condemnation claims, though it denied TVA’s request for summary judgment on plaintiffs’ property damage, trespass, and nuisance claims. The court instead granted motions to consolidate those trials into two separate phases: The first phase, which resulted in Thursday’s decision, involved issues relating to duty breach and dike failure causation, and in the second phase, “plaintiffs may attempt to prove they were each directly impacted by the spill on an individual basis,” TVA said in a statement on Thursday.

TVA said it "has taken responsibility for what happened and is committed to restoring the Kingston area." The utility said it has purchased about 180 properties and settled more than 200 other claims submitted by area residents. It has also paid $43 million to the Roane County Economic Development Foundation for use by communities in the affected area. The recovery project is expected to continue through 2015 at an estimated cost of about $1.2 billion.

"Since the spill in December 2008, TVA’s commitment has not wavered—to clean up the spill, protect the public health and safety, restore the area, and, where justified, fairly compensate people who were directly impacted," TVA said. "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."

According to Alabama-based law firm Beasley Allen—whose attorneys Rhon Jones, Brantley Fry, and David Byrne represented the plaintiffs—at least 500,000 cubic yards of coal ash still remain on the Emory and Clinch River bottoms. The firm, which is also representing plaintiffs involved with the April 2010 explosion of the Deepwater Horizon oil rig in the Gulf of Mexico, said the TVA coal ash spill was much worse: "To put things in perspective with another recent environmental catastrophe, the BP oil spill released more than 200 million gallons of oil into the Gulf of Mexico over the course of nearly five months. The TVA coal ash spill released more than a billion gallons of toxic sludge over 300 acres in East Tennessee within the course of minutes."

In the months following the breach of the TVA’s 50-year-old coal ash storage pond at Kingston, TVA has been severely criticized for its maintenance of its ash ponds. TVA’s Office of the Inspector General (OIG) has accused the utility of harboring a "legacy culture" at its fossil fuel plants, relegating coal ash to the status "of garbage at a landfill rather than treating it as a potential hazard to the public and environment."

The incident also heightened national awareness of problems associated with utilities’ coal ash surface impoundments and prompted the Environmental Protection Agency (EPA) to propose the first federal rule to regulate disposal and use of coal ash.

Under one option offered by the EPA’s 2010-proposed Coal Combustion Residuals rule, coal ash would be regulated under the hazardous waste provisions of RCRA (coal ash is currently considered exempt waste under an amendment to RCRA). Under the other option, coal ash would remain under RCRA’s nonhazardous waste provisions, and states would spearhead coal ash regulation. A final rule is expected at the end of the year.

The EPA estimates that the nation has about 300 coal combustion residual landfills and 584 surface impoundments or similar units. These are used by roughly 495 coal-fired power plants located in 45 states.

Sources: POWERnews, U.S. District Court Eastern District of Tennessee, TVA, Beasley Allen, EPA

—Sonal Patel, Senior Writer (@POWERmagazine)