The Tennessee Valley Authority will not be granted immunity, as a government agency, to seven lawsuits alleging that TVA was largely culpable for the 2008 Kingston coal ash spill.

Judge Thomas A. Varlan made the ruling Friday, March 26, 2010.

(The Kingston Fossil Plant, on the Emory River.  Photo:  TVA.

Attorney Elizabeth Alexander called the decision a “tremendous victory.”  She is a partner with Lieff Cabraser Heimann & Bernstein, LLP of Nashville, representing citizens whose homes and land were severely damaged by the Kingston disaster.

The coal ash spill flooded the Emory River and nearby communities with 1.1 billion gallons of coal sludge, on December 22, 2008.  Fifteen months later, the cleanup still continues and affected citizens try to go about their lives. 

(Aerial view of Kingston spill, 23 Dec 2008.)

“...we want the TVA to give us honest answers about what is in this toxic ash,” said Levi Giltnane, a plaintiff in a class-action lawsuit, “and we want the TVA to fund medical testing for our family and other families who have been exposed to the massive amounts of toxic materials the TVA has dumped in our community.”

(The spill damaged dozens of homes on the Emory and Clinch Rivers.  Photo:  Chris Irwin.)

Robert Giltnane, et al, v. Tennessee Valley Authority was filed in the Tennessee Eastern District Court on Jan 9, 2009.  The plaintiffs (Robert Giltnane, Mary Giltnane, Levi Giltnane, Brandy Giltnane, Ian Cullen, and Sabrina Cullen) have already had some frustrations in dealing with TVA.

A federal judge ordered TVA, at the end of January 2009, to preserve evidence that might be critical to the litigations, after the agency refused that request from Alexander. 

The suing parties’ legal teams wanted their water testing experts to have “unfettered access” to the 300 acres of polluted land on the Emory River.  This had been very difficult before, even for volunteers who simply wanted to go door to door and educated residents on the dangers of their contaminated drinking water (which TVA simply told them to boil before consuming).

Several members of United Mountain Defense, while trying to collect water sample on public lands, were detained illegally by TVA during the initial quarantine of the area.

Chris Irwin, an attorney and UMD’s founder, recently told TENTHMIL about his experiences conducting water and human health testing after the Kingston spill.  He explained how his organization, faced with the need to produce solid scientific evidence that would hold up in court, was able to develop a testing system that became the envy of government regulatory agencies, and was even borrowed by them.

In early April, 2009, TVA admitted to losing “eight or nine” voice mails, which might have had a serious bearing on the ongoing litigations.  TVA blamed an “antiquated” voice message system.  Then, when Alexander requested to see an organizational chart which could have told her which employees were responsible for managing the voice mails, TVA refused.

17 April 2009, TVA filed a motion for governmental immunity from lawsuits that have arisen from the Kingston spill, on the grounds that it could not be sued for policy decision such as the one to place the ash storage facility near the Emory River. 

But Varlan did not let TVA off the hook.  He wrote,

“once a relevant policy decision has been made, the government is accountable for its negligence in the implementation of that decision.”

The agency also aimed to deny jury trials and punitive damage awards to the plaintiffs, which Judge Varlan did uphold.

The lawsuit alleges TVA had prior knowledge of the weakness of the Kingston Fossil Plant’s coal ash dam, and did not make sufficient efforts to prevented the spill.  TVA is criticized for only applying “band-aid” measures, such as small water diversions.

Since May of 2009, the Environmental Protection Agency has taken the burden of the Kingston cleanup, under Superfund.  The Emory river, between mile markers 0 and 6, is to remain closed for this effort until May 15, 2010.

(The sludge is being scooped up, and sent by the trainload to the Arrowhead landfill in Alabama.  Photo:  TVA.)

The Kingston spill was one of the worst environmental fiascoes ever to occur in the southeastern U.S., and its harm is residual.  The restitution of once peaceful lives will certainly be a long, uphill battle.

But this recent decision is lauded by the victims as a step toward seeking justice for the responsible parties.

(Photo:  Adam Brimer.)