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In re Tennessee Valley Authority Ash Spill Litigation

ELR Citation: 42 ELR 20179
Nos. 3:09-CV-009 et al., (E.D. Tenn., 08/23/2012) (Varlan, J.)

A district court held that the Tennessee Valley Authority (TVA) is liable for damages to property owners and residents following a containment dike failure at its Kingston Fossil plant that spilled more than 5 million cubic yards of coal ash sludge over approximately 300 acres. The court determined that the failure was caused by TVA's placement of the dike over a water embayment, its design of the dike, its decision to continue operating the plant as a wet coal ash storage and disposal facility, and its decision to continue building up its wet coal ash stack. This conduct, in conjunction with the geological conditions of the water embayment, gave rise to a slimes layer, a unique subsurface layer of materials located near the foundation of the dike that was weak, high in water content, and susceptible to a complete loss of strength when overstressed. And but for the confluence of these physical and geological factors and the movement of the slimes layer that triggered the dike failure sequence, the coal ash spill would not have occurred. The creation of the slimes layer, however, cannot simply be attributed to only discretionary conduct for which TVA cannot be liable under the discretionary function doctrine. The negligent implementation of discretionary decisions to design, locate, and construct a wet coal ash facility do not involve policy judgments and considerations the discretionary function doctrine is intended to shield. The court therefore found TVA liable for the ultimate failure of the dike that flowed, in part, from TVA's negligent nondiscretionary conduct. The court also concluded that TVA's failure to inform and train TVA personnel in TVA's mandatory policies, procedures, and practices for coal ash management, and TVA personnel's negligent performance of the same, were also substantial contributing causes of the failure. Although the substance of these policies, procedures, and practices are based on discretionary conduct for which TVA cannot be liable, TVA's failure to inform and train TVA personnel is nondiscretionary conduct for which TVA is liable. In phase II of the litigation, each plaintiff must prove the elements of his or her respective negligence, trespass, and/or private nuisance claims by a preponderance of the evidence.