TVA Attorney Says No Proof Negligence Caused Spill

By BILL POOVEY | October 14, 2011

An attorney for property owners seeking damages from a huge coal ash spill asked a judge to hold the Tennessee Valley Authority liable, disagreeing Wednesday with an attorney for the nation’s largest public utility who said the 2008 disaster wasn’t caused by TVA negligence.

TVA attorney Edwin Small in a closing argument told U.S. District Judge Thomas Varlan that a deep foundation failure unrelated to TVA’s employee training, maintenance and construction practices caused the Dec. 22, 2008 breach of an earthen containment dike at the coal-fired Kingston plant west of Knoxville.

Small said attorneys for some 230 plaintiffs failed to specifically link any “negligent conduct to the failure that occurred here.”

Plaintiff attorney Jeff Friedman told the judge at the bench trial that testimony and evidence show TVA neglected warnings about possible problems with the dike for years.

A report for TVA on what caused the spill of 5.4 million cubic yards of ash containing mercury, selenium, arsenic and other poisons into the Emory River and across 300 acres in the Swan Pond community – destroying or damaging about two dozen homes – included dikes built over a “slime” layer of loose ash and silt.

The lawsuits contend TVA concocted the slime explanation to avoid lawsuits.

No one was hurt in the spill but Friedman said “if there is a next time we may not be so lucky. What if it is handling nuclear energy instead of coal ash?”

The Environmental Protection Agency has described the spill as “one of the worst environmental disasters of its kind” and is trying to decide if the the byproduct of generating electricity with coal should be regulated as hazardous.

Small said records presented at the trial showed that a dozen geotechnical engineers have disagreed with evidence presented by Friedman and other plaintiff attorneys that seepage and other visible surface and shallow problems caused the spill, instead of a shift in oversaturated ash 80 feet below.

“That makes all the difference in the world,” Small said. “Simply put, the foundation was overloaded and the system failed.”

Small also said TVA was operating the wet landfill based on the advice of engineering consultants.

With another bench trial on TVA liability set for Nov. 1, the judge gave attorneys a Jan. 12 deadline for post-trial filings. He will then decide if TVA is liable.

James Scott, an attorney for property owners whose lawsuits are set for the second trial, declined comment about how it will be different or if he might decide to rely on evidence presented in the 4-week trial that ended Wednesday.

If the judge finds TVA liable at either trial, court proceedings on damages will follow. Plaintiff attorneys said they expect more suits to be filed before a Dec. 22 deadline.

During the trial, geotechnical engineer William H. Walton, testified about leading a $3 million spill study by AECOM USA Inc. for TVA. He said the spill was triggered by the “slime layer” deep under the surface. Walton compared the deep slimes to “undisturbed yogurt” that becomes more fluid when it is stirred.

Attorneys for property owners cited TVA Inspector General Richard Moore’s criticism that the AECOM report failed to consider management practices and gave too much weight to the slime layer.

The TVA inspector general testified about his report that said the slimes finding tended to reduce the “legal liability” of TVA management. The report also said management’s decision to allow TVA’s lawyers to hire the consultant and narrow his focus for the “root cause” study predetermined a choice “between accountability and litigation strategy.”

Another study said the spill “could have possibly been prevented” if TVA had heeded concerns about the stability of the ash pond raised by TVA employees and consultants as early as 1985 and again in 2004.

Small declined comment as he left the courthouse.

Plaintiff attorney Elizabeth Alexander said her firm’s clients “appreciated the opportunity to present their evidence to the court.”

“A responsible governmental entity would not have gone to such lengths to avoid responsibility for its conduct, as TVA has done these past weeks and years,” she said.

Harbans L. Singla, who is among the plaintiffs and observed much of the trial, said his development group has 53 acres within a mile of the spill and he stands to lose about $2 million because the waterfront property can’t be sold.

“Now nobody will go look at it,” Singla said.

TVA supplies power to about 9 million people in Tennessee, Kentucky, Alabama, Mississippi, Georgia, North Carolina and Virginia.

The $1.2 billion spill cleanup is costing ratepayers an average of 69 cents a month each until 2024.

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