One Year After TVA Fly Ash Spill, Lawsuits Expected To Clog Courts

One year ago today, a coal waste pond at the <"">Tennessee Valley Authority (TVA) facility near Kingston, Tennessee let loose an unimaginable 5.4 million cubic yards of toxic coal sludge into the Emory and Clinch rivers and the 300 acres surrounding the plant.

Although the TVA claims it has been punished enough for last year’s massive and catastrophic fly ash spill, some environmental groups disagree and are seeking prosecution and asking that the utility no longer be protected by federal loopholes. Now, says KnoxNews, it is expected that courts will be jammed for years with lawsuits resulting from the historic and environmentally decimating spill.

Of note, the spill dumped more heavy metals into the Emory River than all of the power plants in 2007, combined, said the Environmental Integrity Project previously.

To date, at least 14 lawsuits, some class actions, have been filed against the utility by residents and business owners who say they were harmed by the spill, said KnoxNews, noting that U.S. District Court Judge Tom Varlan is handling all of the cases. Millions of dollars in damages are being sought in the lawsuits, many of which are pending rulings.

All of the suits have claimed that the utility should have been aware that the ash pond in Kingston was faulty; an outside contractor noted in his analysis that an undetected level of sludge on the bottom of the ash was likely to blame, said KnoxNews. An inspector general with the TVA blamed the utility for handling problems around the spill that were more legal in nature and meant to ameliorate liability, added KnoxNews.

Despite the catastrophic, far-reaching nature of the accident, the TVA has asked the judge to dismiss the pending lawsuits, citing a legal principle called discretionary function, reported KnoxNews. Discretionary function bans federal agencies—such as the TVA—from lawsuits stemming from the agencies fulfilling assigned duties, explained KnoxNews. Recently, the Associated Press (AP) reported that TVA officials said the utility is not immune from penalties and legal actions filed by the Environmental Protection Agency (EPA) and that it’s working on implementing changes to its processes. Environmental groups argue that the TVA is being protected under the federal rule that places limitations on how the Department of Justice prosecutes federal agencies.

Gregory Button, a University of Tennessee anthropologist and expert in environmental disasters said the “TVA, like all federal agencies, and consistent with the Department of Justice’s position on the issue, is not subject to civil penalties in suits brought by citizen groups under some federal environmental statutes. It would take legislation to change this,” quoted KnoxNews. But, a claim of “sovereign immunity” does not always stand, noting that U.S. Army Corps of Engineers was sued following Hurricane Katrina, explained Button.

Numerous studies have concluded that coal dumps leach dangerous toxins into the environment that can cause cancer, birth defects, and other serious health outcomes in water and wildlife, including frightening guarantees of developing cancer from drinking contaminated water and suffering damage to the liver, kidney, lungs and other organs from toxic metal exposure, such as cadmium, cobalt, lead, and other pollutants far above levels that are considered safe,” citing Environmental Integrity previously. The Project’s earlier report also found that the spill released about four and a-half times more lead and two and a-half times more arsenic than was released by the entire power industry the year prior to the spill, said KnoxNews. Environmental Integrity based its findings on industry-supplied data to the EPA, said KnoxNews.

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