Federal ruling: TVA liable for coal ash spill

Federal ruling: TVA liable for coal ash spill

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KNOXVILLE (WATE/AP) - A federal judge ruled that the Tennessee Valley Authority is liable for the failure of a storage system that caused a massive ash spill in 2008 in Roane County.

U.S. District Judge Thomas Varlan said in a ruling issued Thursday morning that "TVA is liable for the ultimate failure of North Dike which flowed, in part, from TVA's negligent nondiscretionary conduct."

The ruling also says plaintiffs' claims of negligence, trespass and private nuisance will proceed to Phase II proceedings.

However, their claims of negligence per se, recklessness, strict liability, and public nuisance are dismissed from the litigation.

The plaintiffs have alleged that the spill not only damaged their property but caused an unsightly smell and scum on their shorelines adjacent to the water and rendered their property useless for recreation.

According to the ruling, in Phase II each plaintiff must prove the elements of his or her respective negligence, trespass, and/or private nuisance claims by a preponderance of the evidence.

The focus of the litigation is the spill that sent 5.4 million cubic yards of coal fly ash from TVA's Kingston Fossil Plant into nearby homes, farmland and the Emory River on December 22, 2008 after a storage dike failed.

The litigation involves more than 60 cases and more than 800 plaintiffs. They have sued over claims of damage to their property and their health. Judge Varlan heard three weeks of testimony in the case during September and October 2011.

"People have been harmed through the actions of TVA, in some cases irreparably," one of the plaintiffs' attorneys, Nashville-based Beth Alexander, said in a statement. "TVA did its best to avoid financial responsibility for the harm it has done, but there was no merit or justification for it to be given such extraordinary protection. TVA spent millions of dollars in legal fees fighting to be cleared of responsibility for what they did wrong instead of compensating the people whose property was damaged."

TVA reported in December that it paid nearly $11 million on outside legal help to battle lawsuits from the spill. About $600,000 of that was spent on outside lawyers to assist with this trial, which ended in October. The rest of the trial work was done by in-house lawyers, and TVA said it couldn't provide a total of in-house legal costs.

TVA said it has bought more than 180 properties and settled more than 200 other claims from people living near the spill.

The utility released a statement Thursday that says in part:

"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 has purchased more than 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.

TVA has been proud to be part of the Kingston community for more than 50 years, and we look forward to being part of the community for years to come."

TVA is continuing a $1.2 billion cleanup of the spill the Environmental Protection Agency described as one of the worst environmental disasters of its kind.

The federal utility also provided $43 million to the Roane County Economic Development Foundation for use by communities in the affected area.

An estimated 500,000 cubic yards of ash remain at the bottom of the Emory and Clinch rivers nearly four years later. A decision will be made later this year to leave the submerged ash alone, dredge it up or cap it.

The EPA held a public hearing in Kingston Tuesday evening about what to do with the leftover ash. The agency is taking public response to its Draft River System Engineering Evaluation/Cost Analysis (EE/CA) Report, which was released earlier in August.

The public can also mail in their comments through September 10. The address is:

ATTN: Kingston Public Comments
P.O. Box 40
Kingston, TN 37763-0040

TVA is the nation's largest public utility and also serves customers in Alabama, Georgia, Kentucky, Mississippi, North Carolina and Virginia.

Portions of this report copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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