Nashville, TN — Elizabeth Alexander of the Nashville office of the national plaintiffs’ law firm Lieff Cabraser Heimann & Bernstein, announced that U.S. District Court Judge Thomas A. Varlan denied, in major part, a motion by the Tennessee Valley Authority (TVA) to dismiss lawsuits arising out of the Kingston coal ash spill. The December 2008 environmental disaster released a billion gallons of toxic coal ash sludge into the surrounding environment, destroying homes, properties and pristine natural areas alike.
“This is a tremendous victory in the effort to hold TVA accountable for the severe damage it has caused to residents and the environment,” said Ms. Alexander. “The Court held that TVA must answer for its alleged negligence that directly led to one of the largest environmental catastrophes in our country’s history.”
TVA argued that it can not be held liable for the disaster because it is an arm of the federal government and immune from lawsuits. In denying TVA’s motion, the Court held that “once a relevant policy decision has been made, the government is accountable for its negligence in the implementation of that decision.”
The Court explained, “Neglect of the facilities, neglect of day to day maintenance, ignoring policies and procedures, failing to implement corrective measures or modifications under those policies or procedures, and the failure to have in place policies and procedures are not discretionary decisions involving the permissible exercise of polices judgment and consideration of public policy.” For a copy of the Court’s order, visit http://www.lieffcabraser.com/pdf/20100326_tva_order.pdf
The New York Times reports that more than a year after a Tennessee coal ash spill created one of the worst environmental disasters of its kind in United States history, the problem is seeping into several other states.
It began on Dec. 22, 2008, when a retaining pond burst at a coal-burning Tennessee Valley Authority power plant, spilling 5.4 million cubic yards of coal ash across 300 acres into the Emory River and an affluent shoreline community near Knoxville. It was enough ash to cover a square mile five feet deep.
While the T.V.A.’s cleanup has removed much of the ash from the river, the arsenic- and mercury-laced muck or its watery discharge has been moving by rail and truck through three states to at least six sites. Some of it may end up as far away as Louisiana.
Read the full article on the New York Times website.
On January 20, 2010, the New York Times ran a strong editorial on the late 2008 Coal Ash Spill in eastern Tennessee criticising the closed-door nature of resulting talks to create new national standards for the disposal of coal ash.
Just over a year ago, one billion tons of toxic coal sludge broke loose from a containment pond belonging to the Tennessee Valley Authority, burying hundreds of acres of Roane County and threatening local water supplies and air quality. The Environmental Protection Agency immediately promised new national standards to replace a patchwork of uneven — and in many cases weak — state toxic materials regulations.
Unfortunately, the agency’s (non-public) recommendations are now the focus of a huge dispute inside the Obama administration, with industry lobbying hard for changes that would essentially preserve the status quo. The Times opines that the dispute should be resolved in favor of the environment and public safety.
Click here to read the full piece on the New York Times website. You can learn more about lawsuits relating to the Tennessee coal sludge spill here.
October 5, 2009
Posted Under:
TVA
On Sunday, October 4, 2009, the coal ash spill was profiled on CBS’ 60 Minutes. As CBS posed the question,
“if coal ash is safe to spread under a golf course or be used in carpets, why are the residents a Tennessee town being told to stay out of a river where the material was spilled?”
In one clip, a TVA representative admitted that TVA missed red flags that indicated that there was a problem before the disaster happened.
The Knoxvillbiz.com published an article about TVA Inspector General Moore’s report on the Kingston Fossil Plant fly-ash spill issued Tuesday. Moore concluded that:
TVA failed to make recommended safety modifications, TVA failed to review management practices, TVA’s analysis overemphasized “slime” layer as a root cause, TVA did not view ash management as a risk, TVA’s culture affected the way it managed ash in Roane County seven months after the TVA coal ash spill
The Tennessee Valley Authority ignored warnings for more than two decades about the safety of the fly ash pond at its Kingston Fossil Plant and could have prevented its catastrophic collapse by addressing them, the TVA inspector general wrote in a scathing report issued Tuesday.
“Since the disaster, TVA has had every opportunity to step up and accept accountability for its failures,” Lieff Cabraser attorney Elizabeth Alexander said. “Instead, the report makes clear that TVA continued to try to avoid the consequences of its actions.”
Read more of the story on Knoxvillebiz.com.
Third party testing results reveal that contamination is worse than first reported by TVA. “Overall, these test results indicate much more severe impacts to water, sediment and fish than has been previously reported by TVA which tells us they haven’t been sampling in the right places,” said Watauga Riverkeeper Donna Lisenby. “Perhaps the recent changeover to EPA oversight of the Kingston Ash spill will correct this serious deficiency.”
Read the full story [off-site link].
On May 11, 2009, the EPA announced that will take over the clean-up efforts to remove one billion gallons of toxic coal ash sludge that TVA spilled into the rivers and surrounding land in Kingston. The coal ash contains arsenic, cadmium, chromium, copper, lead, mercury, selenium and other hazardous substances.
In the EPA’s report regarding the clean up, EPA Administrator, Lisa P. Jackson, stated that the disaster is “one of the largest and most serious environmental releases in our history.”
Read the full report [off-site link]. You can also read more on this development [off-site link].
Last Friday, on April 11th the TVA announced it has purchased more than 70 properties near the coal ash spill from the Kingston plant. This move does not include those just outside the immediate spill area, leaving many who are in need, stuck in limbo and shut-out of recovery efforts.
“Thousands and thousands of other folks in Roane County impacted by the spill have not gotten any money from the TVA,” said Lieff Cabraser attorney Mark Chalos. He is representing about 20 individuals, families and businesses in a lawsuit against the TVA, seeking medical monitoring of family members, environmental testing and compensation for any harm.
“TVA has created this impression that … ‘We’ll get to you eventually,’ ” Chalos said. “What they’re doing in legal terms is trying to get the court to find they’re immune and don’t have to pay anybody anything for the harms they’ve caused.”
Later this week the TVA will notify those who have requested a home buy-out of the agency’s decision on those properties outside the immediate spill area.
At a hearing today in federal court in Knoxville, the Tennessee Valley Authority agreed to an April 17, 2009, deadline to file its motion to dismiss all of the cases in their entirety based on TVA’s claim of “discretionary function” immunity. TVA is claiming complete immunity, taking the position that its conduct during construction and maintenance of the dike should be considered discretionary. TVA also intends to file a motion to block the case from being decided by a jury and to preclude the possibility of punitive damages for its conduct.
Bob Giltnane, Plaintiff in the case, says: “Our family is shocked that TVA is seeking complete immunity from any liability for the disaster it caused our community. I don’t understand why TVA thinks it can devastate our community, families, and businesses, and then claim TVA can avoid accountability for its actions. TVA should take responsibility for what it has done to us.”
Families and TVA jointly proposed case management orders to organize the various cases arising out of the December 22, 2008 coal ash spill in Kingston, Tenn.
Notably, TVA clearly stated its intention to assert governmental immunity as a complete bar to any lawsuits arising out of the spill. TVA requested to file its motion on April 17, 2009. TVA also intends to argue that Plaintiffs are not entitled to a jury trial or to punitive damages, which can be awarded to punish a defendant for its misconduct. Plaintiffs will oppose each of these motions.
The proposed case management orders also address a schedule for discovery and important motions, a plan for preservation of evidence, and various other litigation matters.
The Court has set a hearing for April 9, 2009 to address the proposed orders.
