A federal judge found the Tennessee Valley Authority (TVA) was negligent in not preventing a December 2008 coal ash dam failure at its Kingston power plant that allowed millions of gallons of ash-laden sludge to foul a local river.

The 130-page ruling came on August 23rd from Judge Thomas Varlan at the U.S. District Court for the Eastern District of Tennessee, who had been reviewing a combined case filed by local residents. The entire TVA ash litigation currently encompasses more than 60 cases pending before the judge and involves more than 800 plaintiffs.

TVA said in an Aug. 23 response to the ruling that since the spill in December 2008, its commitment has not wavered – to clean up the spill, protect the public health and safety, restore the area, and, where justified, fairly compensate people who were directly affected.

“The U.S. District Court today ruled that TVA can be held liable for conduct by TVA that contributed to cause the spill,” TVA added. “The litigation now will proceed to a second phase where the plaintiffs may attempt to prove they were each directly impacted by the spill on an individual basis. TVA remains committed to the full restoration of the community directly impacted by the spill, while being mindful of our responsibility to manage ratepayer dollars.”

TVA said it has purchased about 180 properties and settled more than 200 other claims. TVA also provided $43m to the Roane County Economic Development Foundation for use by communities in the affected area. The ash recovery project is expected to continue through 2015.

Mary Anne Hitt, Director of the Sierra Club's Beyond Coal Campaign, said in an Aug. 23 statement that the decision is "a victory for every family that was impacted by this tragedy. Local residents have lost their property and been exposed to arsenic, lead, mercury and selenium. Forcing TVA to face up to its responsibility is just the first step in ensuring that these folks can rebuild their lives," Hitt said.

"In the life cycle of coal-fired power, it is coal ash ponds like the one at Kingston that pose some of the greatest and most direct danger to nearby communities and ecosystems. The ongoing tragedy in Tennessee, and the danger posed by hundreds of other coal ash ponds around the country, is the sad result of inadequate and inconsistent national standards for protecting communities, as well as regulatory loopholes that allow the coal industry to avoid taking responsibility for its waste. Unfortunately, four years after the TVA spill, these loopholes have not been closed, and these dangers remain in many communities," Hitt said.

This is only Phase I of a two-phase process

In general, plaintiffs claim that the failure of the coal ash dike at Kingston and the resulting spill was caused by TVA’s negligent conduct with respect to the design, construction, implementation, operation, maintenance, and inspection of the coal ash storage and disposal facilities, the judge wrote. Plaintiffs’ initial complaints against TVA alleged causes of action for personal injury and property damage under tort law theories of negligence, negligence per se, gross negligence, trespass, nuisance, strict liability and inverse condemnation.

The court had previously issued written opinions on various motions in which TVA sought dismissal or limitation of plaintiffs’ claims. The court previously found that the discretionary function doctrine insulates TVA from liability if the conduct challenged by plaintiffs was discretionary conduct grounded in considerations of public policy and involved the permissible exercise of policy judgment. Also in a prior ruling, the court granted TVA’s request to dismiss plaintiffs’ claims for punitive damages and granted TVA’s request to strike plaintiffs’ requests for a jury trial.

During a three-week bench trial on Phase I, the court heard and considered testimony and evidence regarding issues of duty, breach, causation, and whether nondiscretionary conduct by TVA caused the dike failure and coal ash spill. The court did not consider testimony or evidence on property-specific causation and damages because these issues would be addressed in Phase II proceedings.

Following Phase I, the parties submitted closing argument briefs, proposed findings of fact and conclusions of law, and summaries of each witness’s testimony, whether that testimony was given at trial or by deposition.

The judge: “While up until this point, common issues of causation—such as whether nondiscretionary conduct by TVA caused the dike failure—have dominated, from this point forward the common issues will not predominate over individualized issues including: whether coal ash is or was present on each plaintiff’s specific property; whether the presence of the coal ash on the specific property can be traced to TVA’s nondiscretionary conduct; whether the coal ash has damaged each specific property; whether and how the coal ash affects each plaintiff’s use and enjoyment of said property; and the amount of damage, if any, to each property and to each plaintiff.”

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