As all of our readers should know by now, on December 22, 2008, TVA’s Kingston plant released 5.4 million cubic yards of coal ash waste onto 300 acres and into local waters. This is the largest accident of its kind in U.S. history, with clean-up expected to cost approximately $1.2 billion, and to take at least five years to complete. TVA recently admitted that the clean-up will not remove all of the ash from the rivers and will leave an untold amount of ash in Watts Bar Lake, which is made up of the Emory, Clinch, and Tennessee rivers.
The remaining ash is expected to be covered with native sediment over time, and after approximately five years, the fly ash residuals that migrate from the original spill site may be diluted to background levels. In the meantime, it is unknown whether the toxins held within the ash – arsenic, selenium, and other heavy metals – will leach into the river and the surrounding environment. Experts acknowledge that “the long term stability of fly ash and associated constituents is relatively unknown at the time.”
It’s fair to say that Watts Bar Lake has become a large experiment into the long-term effects of coal ash in the environment. In fact, TVA hosted a seminar in March for researchers working on the Kingston spill. During the seminar, presenters stated that the ash spill could not have happened in a worse place because of the three rivers converging so close to the spill. Presenters also admitted that nothing else behaves like ash, which makes scientific research difficult. As a result, the people and environment near the spill will be subject to experimentation, not only as clean-up progresses, but also for the long-term.
As far as the clean-up is concerned, it’s happening in three phases, with Phase I projected to be completed this month, about 18 months after the spill occurred. Phase I is what EPA refers to as the “time critical” phase where ash is removed from the Emory River. As part of Phase I, a portion of the Emory River has been closed to the public completely. The closed portion was recently extended to include a full six-mile stretch of the Emory River and the closure is expected to last until at least this month.
Phase II is the “non-time-critical” phase, and three alternatives have been proposed for accomplishing that phase, which will remove ash from two sloughs of the Emory River and from surrounding lands. A decision hasn’t been made on which of the three alternatives will be used. Each of the three alternatives involve restoration of embayments and sloughs to pre-spill conditions; closure of the failed dredge cell and adjacent Ash Pond; and enhanced perimeter dikes constructed of soil-cement columns for long-term stability of the closed dredge cell. The three options differ in the amount of coal ash disposed off-site vs. on-site; final elevation of the closed dredge cell; the type and amount of construction traffic; duration of work; and cost. The public comment period on the proposed alternatives ended in April, and a final decision is expected some time this month.
As reported previously, our firm, working with Tennessee lawyer Gary Davis, filed a class action lawsuit in January 2009 on behalf of property owners and residents affected by the coal ash disaster. Beasley Allen attorneys are working to hold TVA accountable for this disaster, and our clients are pleased that the case will move forward after the court rejected TVA’s argument that it is immune from suit. In March, Thomas Varlan, U.S. District Judge for the Eastern District of Tennessee, issued an order denying TVA’s motion to dismiss the case. TVA argued that it is immune from suit due to sovereign immunity.
TVA is a federal corporation and as such may be immune from suit in some instances. In our case, however, we argued that this is not one of those instances and the Court agreed. The Court held that TVA has discretion to determine how best to handle its coal ash waste, but once it made that determination, TVA has a responsibility to ensure safe construction and maintenance of the coal ash disposal pond. TVA can not negligently allow the ponds to endanger others or damage property. We will now move forward to prove that TVA neglected its responsibilities for the coal ash pond.
Now in the discovery phase of the litigation, our lawyers are working to take the disposition of Tom Kilgore, TVA CEO. However, TVA is asserting that Mr. Kilgore has no knowledge related to the Kingston coal ash ponds. We have filed a motion to compel Mr. Kilgore’s deposition. As the head of TVA, we believe Mr. Kilgore should answer Plaintiffs’ questions and not be allowed to hide behind carefully crafted statements put together by TVA’s public relations department.
In addition to discovery, we are working to consolidate our class action suit with two other class action cases filed in response to the coal ash disaster. Since TVA recently dropped its objection to the consolidation, we hope to have a ruling on that issue in the near future. As reported previously, we believe that combining these class action claims gives us strength in numbers and allows us to present an even more efficient method to the judge so the matter can be resolved quickly and fairly. If you need additional information on this subject, contact Rhon Jones or David Byrne in our firm at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com or David.Byrne@beasleyallen.com.
Sources: Knoxville News Sentinel, U.S. EPA
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