Vermont Law Top 10 Environmental Watch List 2013

TVA Found Liable for Massive Coal Ash Spill But Proof of Damages Remains an Obstacle

Summary:
The larger question is whether such facilities, with their inherent dangers to climate, waterways, and communities, belong as part of our continuing energy future.

In December 2008, residents of Roane County, Tennessee, braced against a cold winter night. Just days before Christmas, a wave of wet coal ash barreled down the Clinch and Emory rivers, wiping out homes, tearing up trees, and choking rivers, streams, and valleys. The source—ponds of fly ash, a byproduct of Tennessee Valley Authority’s (TVA) Kingston Fossil coal-fired electricity generating plant—let go when earthen walls, dams, and dikes collapsed. More than 300 acres downstream of the plant were submerged in coal ash and rainwater containing high concentrations of heavy metals and toxic chemicals. When the waters subsided, the valleys inundated with coal ash and silt dried into snaky lines of crumbling concrete.

TVA-sites-map

TVA sites

In August 2012, the U.S. Federal Court in the Eastern District of Tennessee held that downstream landowners can recover damages from the TVA for what the U.S. Environmental Protection Agency announced as “one of the worst environmental disasters of its kind in history.” The decision was a noted victory for downstream landowners and the vast river valleys and natural systems that were destroyed by the 5.4 million cubic yards of sludge. The ruling was also a clear signal that the TVA was directly and ultimately responsible for the spill.

All along, the TVA argued that an unprecedented combination of frigid temperatures and increased rainfall caused holding dikes to shift and break, releasing 70 years of fly-ash sludge into the rivers and streams below the plant. The court found otherwise, carefully piecing through more than 70 years of poor construction, failed inspections, skipped mandatory improvements, and overall careless management that caused the dam’s demise multiple times in the past decade, resulting in the final, catastrophic spill. While the TVA argued that the creation, management, and maintenance of coal mining operations fall within the unassailable discretion of the TVA’s authority as an independent federal agency, Judge Thomas Varlan found that, but for the TVA’s failure to perform nondiscretionary conduct, the disaster never would have occurred.

Yet while the court found the TVA’s negligent maintenance of the holding ponds responsible for the spill and damage, the court also limited the claims and put the responsibility on the individual landowners to prove actual damages. The decision opens the door for private landowners downstream of the spill to mount individual cases for nuisance and trespass—time honored, if limited, rights of recovery for individuals whose lands have been harmed or invaded. Landowners are expected to bring claims under this ruling within the new few months. But the path cleared is not an easy one: individual landowners—800 at last count—will have to hire their own attorneys to press their individual claims. In a county where the average household income is just $41,000, access to skilled legal staff prepared to help landowners exercise their rights may be limited. Traditional mechanisms that might give landowners easy access to relief, including class action status, were dismissed by the court early in proceedings, along with the opportunities for either a jury trial or consideration of punitive damages.

While the TVA and federal authorities work to clean up damage from the spill, for some communities that process is slow. In May 2009, the TVA reached an agreement with the EPA to clean up and restore all affected areas from the spill, and TVA paid $43 million to the Roane County Economic Development Foundation toward restoration efforts in the region. Government estimates put the cost of total cleanup at about $1.2 billion. In some communities four years later, sludge remains six feet deep atop residential properties.

While the 800 affected households seek compensation for damages, the nine million power customers served by the Kingston plant still receive the coal plant’s electricity. The obvious point—that dangerous facilities should be rigorously and responsibly maintained—is undisputed and confirmed by Judge Varland’s thoughtful and precise decision. The larger question is whether such facilities, with their inherent dangers to climate, waterways and communities, belong as part of our continuing energy future.