Environmental Protection

The 2008 spill of 5.4 million cubic yards of fly ash, a byproduct of the Tennessee Valley Authority Kingston Fossil coal-fired electricity generating plant, destroyed homes and filled streams and valleys.

Proving Damages for 2008 Coal Ash Spill a Steep Obstacle

After Tennessee Valley Authority was found liable for a massive coal ash spill, landowners this year will have to hire their own attorneys to press their individual claims. The larger question is whether facilities like the Kingston plant, with their inherent dangers to climate, waterways, and communities, are part of our continuing energy future.

In Roane County, Tennessee, days before Christmas 2008, a wave of wet coal ash barreled down the Clinch and Emory rivers, wiping out homes and choking rivers, streams, and valleys. The source: 5.4 million cubic yards of fly ash, a byproduct of the Tennessee Valley Authority's (TVA) Kingston Fossil coal-fired electricity generating plant, let go when earthen walls, dams, and dikes collapsed. More than 300 acres downstream of the plant were submerged in coal ash and rainwater containing high concentrations of heavy metals and toxic chemicals.

In August 2012, the U.S. Federal Court in the Eastern District of Tennessee held that downstream landowners can recover damages from TVA for what the U.S. Environmental Protection Agency described as "one of the worst environmental disasters of its kind in history." All along, TVA argued that an unprecedented combination of frigid temperatures and increased rainfall caused holding dikes to shift and break, releasing 70 years of fly-ash sludge, but Judge Thomas Varlan found otherwise, carefully piecing through more than 70 years of poor construction, failed inspections, skipped mandatory improvements, and overall careless management that caused the dam’s demise multiple times in the past decade, resulting in the final, catastrophic spill.

Yet while finding TVA's negligent maintenance of the holding ponds responsible for the spill and damage, Varlan limited the claims and put the responsibility on the individual landowners to prove actual damages. Landowners are expected to bring claims under this ruling within the new few months, but it won't be easy: Individual landowners — 800 at last count — will have to hire their own attorneys to press their individual claims. In a county where the average household income is just $41,000, access to skilled legal staff prepared to help landowners exercise their rights may be limited. Traditional mechanisms that might give landowners easy access to relief, including class-action status, were dismissed by the court early in proceedings, along with the opportunities for either a jury trial or consideration of punitive damages.

Cleanup Far from Finished
While TVA and federal authorities work to clean up damage from the spill, for some communities that process is slow. In May 2009, TVA reached an agreement with EPA to clean up and restore all affected areas from the spill, and TVA paid $43 million to the Roane County Economic Development Foundation toward restoration efforts in the region. Government estimates put the cost of total cleanup at about $1.2 billion. More than four years later, sludge remains 6 feet deep atop residential properties in some communities.

While the 800 affected households seek compensation for damages, the 9 million power customers served by the Kingston plant still receive the coal plant's electricity. The obvious point — that dangerous facilities should be rigorously and responsibly maintained — is undisputed and confirmed by Judge Varlan's thoughtful and precise decision. The larger question is whether such facilities, with their inherent dangers to climate, waterways, and communities, belong as part of our continuing energy future.

About the Authors

Vermont Law School Associate Professor Rebecca Purdom is known for her work in water and natural resource management, environmental human rights, nonprofit management and policy, and sustainability education. She is the assistant dean of the Environmental Law Program at the law school, where she chairs the Distance Learning Program, works with the Center on Agriculture and Food Systems, and teaches in the environmental program. Purdom chairs the Working Group for Distance Learning in Legal Education, a national group of law school faculty and practitioners focused on promoting reform in legal education. She received her BS degree in science journalism from Linfield College in 1992 and her JD and MSEL degrees from Vermont Law School in 1996, where she also served as managing editor of the Vermont Law Review. From 1996 to 1998, she served as a clerk to the Hon. Judge J. Garvin Murtha of the U.S. District Court for the District of Vermont and in the chambers of Judge James L. Oakes, Second Circuit Court of Appeals. In 1998, she went into private practice and over the next decade worked in land use, environmental permitting, as the director of a 3000-acre conservation organization, and as a consulting attorney for nonprofit organizations and environmental litigators. In 2001, she joined the faculty of Green Mountain College, where she chaired the Division of Environmental Studies and Management. She was instrumental in designing the college's environmental liberal arts curriculum, which received the American Association of Sustainability in Higher Education (AASHE) Campus Sustainability Leadership Award, and was recognized by Sierra Magazine and the top Green College in 2010 when the college became the first college in the country to go climate neutral without use of carbon-offsets. In 2004, she was the recipient of the United Methodist Church General Board of Higher Education and Ministry Award for Exemplary Teaching. From 2006 to 2010 Professor Purdom taught in the Vermont Law School Summer Session, and designed and launched Vermont Law School's Certificate in U.S. Environmental Law.

Emily Remmel, a native of Edmond, Okla., is a second-year Vermont Law School JD student and a staff editor at the Vermont Journal of Environmental Law (VJEL). She is passionate about conservation and environmental stewardship. She enjoys science and photography and keeps zooplankton as pets on her windowsill. She plans to practice environmental law with a focus on water law and policy.

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