Before and After Kingston: A Coal Ash Litigation Update

As reported in previous Dinsmore & Shohl Legal Alerts, the December 2008 breach of a coal ash impoundment at the Tennessee Valley Authority's facility in Kingston, Tennessee resulted in the spill of over 5 million cubic yards of coal ash into adjacent waterways and properties. As a consequence, the regulation and storage of coal ash has garnered increased scrutiny by the U.S. Environmental Protection Agency (EPA), activist environmental groups, and those initiating law suits on behalf of persons supposedly harmed by coal ash.

Coal ash is a byproduct of coal combustion and is created when coal is burned to generate energy. Coal ash can be recycled in a variety of products, including concrete, drywall, and asphalt for roads. However, the remainder of the byproduct is often stored in pond-like containment facilities. There are currently over 13,000 of these storage facilities across the country.

The pressure to regulate coal ash mounts. On June 29, 2009, the EPA identified 44 coal combustion residual (CCR) impoundments as having "high hazard potential." Of the 44 identified sites, 18 are located in Ohio, Kentucky, West Virginia, and Pennsylvania.

EPA pledged to issue a notice of proposed rulemaking for coal ash ponds by the end of 2009 but has yet to do so. On Oct. 16, 2009, the agency sent a draft proposal to the White House Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA). EPA administrator Lisa Jackson told reporters in February that she hoped her agency would unveil the proposal by April. But, she said, "I can't absolutely lock it in."

Kingston Litigation

The Tennessee Valley Authority (TVA) has spent $1.2 Billion dollars in clean up costs; excluding litigation. Further, TVA gave $43 million dollars to local governments for projects to improve community life that are not related to the spill. TVA also purchased 70 properties around the spill. The clean-up and remediation effort continues.

In the wake of the Kinston spill, over 560 plaintiffs filed 57 lawsuits against the TVA. TVA has offered 150 property owners settlement, 33 of which were declined. One case has been dropped. In late February 2010, plaintiffs in three class action federal lawsuits against the TVA moved to consolidate their cases into one. If the motion is approved the number of cases would decrease from 56 to 54. As of September 2009, the TVA had already paid out $69 million dollars in settlements.

TVA argued that they were immune from...