Adam G. Province

January 23, 2009

Residents of Roane County, Tennessee recently filed a class-action lawsuit against the Tennessee Valley Authority (TVA.) alleging, inter alia, gross negligence that resulted from a massive ash spill at its Kingston Fossil Plant. Complaint at 10--18, Blanchard v. Tenn. Valley Auth., (E.D. Tenn. Jan. 9, 2009). The complaint, filed on January 9, 2009 in the U.S. District Court of East Tennessee, states that "TVA knew . . . the containment dike . . . was likely to fail. The dike . . . was unlined . . . and suffered from recurring containment failures and other problems." Complaint at 7, ¶20. Plaintiffs seek $5 million in damages as a result of TVA's negligence from the ash spill. Complaint at 18.

On December 22, 2008, the TVA dike used by the Kingston Plant ruptured from an unknown cause. As a result, 1.1 billion gallons of toxic slurry--a mixture of coal fly ash and water--were released into the local community. Once released, theslurry moved rapidly downhill, destroying 300 acres of land and residential property. The slurry finally stopped when it flowed into the Clinch and Emory Rivers--tributaries of the Tennessee River. Unfortunately both rivers serve as major sources of drinking water for local communities. Despite water tests yielding high levels of arsenic and other heavy metals, both the Environmental Protection Agency (EPA.) and the Tennessee Department of Environment and Conservation stated that the drinking water is within safe levels for human consumption. The Kingston event is the largest coal ash disaster in U.S. history and has been compared to the Exxon Valdez oil spill because both involved massive amounts of toxic substances.

Coal-fired power plants operate as an important public utility, providing needed electricity to local communities by processing fossil fuels. The plants also produce massive amounts of fly ash--containing many toxic substances such as arsenic, lead and mercury--as a byproduct of converting coal and other fossil fuels into electricity. These wastes are then stored in nearby man-made retention ponds. However, these retention ponds are not typically lined with protective, reinforced layers due to lack of regulation by the federal government. Despite years of debate by concerned environmental groups and numerous scientific studies favoring regulation, the EPA. has refused to classify coal ash as a hazardous waste.

In an ironic twist to the Kingston spill, another TVA. coal ash dam broke just three weeks later in northeast Alabama. The Alabama spill forced 10,000 gallons of coal ash from TVA's Widows Creek Fossil Plant after an unlined retention pond ruptured. While not nearly as large as the Kingston event, this latest ash spill brings just as much public concern because toxic heavy metals entered the local drinking water supply. The Widows Creek ash spill may bring additional lawsuits against TVA.

Individuals have already filed various state court lawsuits against the TVA because of the Kingston ash spill. These cases could be consolidated with the Blanchard v. TVA class-action suit. However, this is likely only the first step in what will be years of litigation, clean-up, and TVA's rebuilding of trust with the local community of Kingston. Even more importantly, the disaster should force federal regulators to re-consider its policy of classifying coal ash as a non-hazardous waste.

Sources:

Complaint, Blanchard v. Tenn. Valley Auth., (E.D. Tenn. Jan. 9, 2009), available at http://web.knoxnews.com/pdf/010909tvacoal-complaint.pdf.

Shaila Dewan, At Plant in Coal Ash Spill, Toxic Deposits by the Ton, N.Y. Times, Dec. 29, 2009, http://www.nytimes.com/2008/12/30/us/30sludge.html?ref=us

Shaila Dewan, Hundreds of Coal Ash Dumps Lack Regulation, N.Y. Times, Jan. 6, 2009, http://www.nytimes.com/2009/01/07/us/07sludge.html?pagewanted=2&ref=us

Shaila Dewan, Metal Levels Found High in Tributary After Spill, N.Y. Times, Jan. 1, 2009, http://www.nytimes.com/2009/01/02/us/02sludge.html?ref=us

Shaila Dewan, Tennessee Ash Flood Larger Than Initial Estimate, N.Y. Times, Dec. 26, 2008, http://www.nytimes.com/2008/12/27/us/27sludge.html?_r=1&ref=us

Shaila Dewan, Waste Spills at Another T.V.A. Power Plant, N.Y. Times, Jan. 9, 2009, http://www.nytimes.com/2009/01/10/us/10sludge.html

Kristin M. Hall, Engineer: Tenn. ash spill warning signs ignored, Washington Post, Jan. 6, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/01/06/AR2009010601728.html

New ash-spill lawsuit filed against TVA, Knoxville News Sentinel, Jan. 9, 2009, http://www.knoxnews.com/news/2009/jan/09/new-ash-spill-lawsuit-filed-against-tva/