Judge further limits TVA ash spill lawsuits

Judge further limits TVA ash spill lawsuits

August 4th, 2011 by Associated Press in News

Staff File Photo by Patrick Smith Remains of a coal ash spill that blanketed more than 300 acres in Harriman, Tenn., surround the TVA Kingston Fossil Plant.

Photo by

By Bill Poovey, The Associated Press

A federal court further limited lawsuits seeking damages from the Tennessee Valley Authority for its huge spill of toxin-laden coal ash, but the judge ruled that claims related to property damages and reduced property values will go to trial.

The court fight is over a Dec. 22, 2008, TVA dam collapse that spilled 5.4 million cubic yards of sludge in the Emory River and onto surrounding land in Roane County west of Knoxville.

U.S. District Judge Thomas Varlan's order Tuesday granted TVA's motion to dismiss claims for personal injury, emotional distress and inverse condemnation. But a bench trial is set for Sept. 13 on dozens of damage suits and another trial possibly to follow in November.

His order allows claims for property damages, trespass and nuisance to go forward. Dozens of other potential plaintiffs who have until December to file damage lawsuits are watching the case.

While TVA since the spill has purchased almost 900 acres for $47 million and signed deals that include owners promising not to sue, hundreds of people who feel they have suffered losses have stakes in the court fight.

Coal ash contains arsenic, selenium, lead and mercury. Though those materials can pose health risks if they leach into groundwater, records say that the Knoxville-based utility contends that tests show no proof of contamination from the spill that exceeds health standards.

TVA also contends that as a federal utility it is not subject to liability claims and that under Tennessee law it has no legal duty to keep its reservoirs and shorelines safe for the plaintiffs' recreational use and enjoyment. TVA says plaintiffs have not shown that the spill caused ash particles to be transmitted to their properties in "material quantities or concentrations sufficient to cause property damage and/or personal injury or to constitute a taking."

The court previously ruled against claims for punitive damages from the spill.

"Our clients will be glad to have their day in court," plaintiff attorney Elizabeth Alexander of Nashville said Wednesday in response to the order.

Alexander said there are owners other than the Smiths who have had property devalued by the spill while TVA has bought out neighbors.

TVA spokeswoman Barbara Martocci said Wednesday that "as far as the decision we are just going to move forward with our case in court in mid-September."

While TVA battles the property owners in court, the Environmental Protection Agency, which has described the spill as a "one of the worst environmental disasters of its kind," is struggling to decide if coal ash would be regulated as a hazardous material.

Some industries use "coal combustion residues" in products such as wallboard and concrete and contend there is no evidence that it is a health hazard. Coal ash recyclers and manufacturers contend tougher federal regulations would place a stigma on the substance and hinder efforts to reuse some of the 130 million tons produced at U.S. coal-fired power plants each year.