Federal Ash Spill Lawsuit Expands

By Gerri L. Elder

On Dec. 31, attorney Michael Ritter held a press conference outside his office in Oak Ridge, Tenn. to discuss a federal lawsuit over an ash spill that occurred on Dec. 22 in Kingston, Tenn.

Ritter announced that the $165 million lawsuit is "just the tip of the iceberg" and that many more plaintiffs could be added to the case against Tennessee Valley Authority and the amount of the claim could rise dramatically. According to The Oak Ridger, he said that his clients had not yet decided if the case would become a larger class-action lawsuit.

A six-page lawsuit was filed in Roane County Circuit Court on behalf of four victims, the Raymond family. The plaintiffs asked the court to award $15 million in compensatory damages and $150 million in punitive damages. The Raymond's complaint named TVA, its board of directors and certain executives, including president and chief executive officer Tom Kilgore as defendants.

According to Ritter and attorney Stephen A. Irving, a litigation team is being assembled for the Raymond's case. The complaint was the first of what could be many lawsuits against TVA.

The Raymond's are owners and developers of a subdivision located relatively close to and upstream of the ash spill site at the Kingston Fossil Plant. The family claims that a creek that runs through their property is backing up because of the spill.

The creek is allegedly backing up onto the property of Lea Ann Raymond Habib, one of the plaintiffs, who is currently pregnant. Chris Raymond, also a plaintiff, owns a home in the development and had 18-month-old twin boys. The family is concerned about exposure to airborne contaminants once the ash sludge dries.

The personal injury lawsuit claimed that the spill caused the Raymond family to lose income, destroyed property and property values, and created potential future medical expenses for the family. They also alleged that the ash spill likely damaged future property sales and caused them severe mental anguish and a loss of "the right to enjoy life."

The Raymond family says that TVA should have known that the retention pond, which held the 1.1 billion gallons of ash contaminate that spilled, was likely to breach or collapse The ash sludge spilled over 300 acres of land and entered the Emory River.

On Jan. 8, Knoxville Biz reported Washington, D.C.-based attorney Michael D. Hausfeld, one of the nation’s leading class action litigators, joined the case. Hausfeld filed suit requesting class status for all landowners "who own or owned real property located on the Emory or Clinch Rivers downstream from the TVA Kingston Fossil Plant in Roane County … beginning on December 22, 2008 and ending on the date of trial who suffered available damages under Tennessee nuisance law."

The class action suit notes water tests have revealed elevated levels of contaminants including arsenic, lead and thallium, and that the 40-acre pond has a history of leaks and failures. It continues to say that property owners have "been warned about allowing their children to play outside, not to go outdoors if they suffer from asthma, not to do heavy exercise outside, all due to the possibility of breathing the fly ash."

The Associated Press reported that TVA is also being sued on behalf of more than 40 residents by the nonprofit Southern Alliance for Clean Energy and other nonprofit groups under the Clean Water Act and the Resource Conservation and Recovery Act. These lawsuits will seek to ensure a proper cleanup of the area is completed.

Environmental advocate Erin Brockovich and her team, which includes an environmental risk assessor and a chemical engineer, visited the spill site and met with residents in their homes on Jan. 8, then did a helicopter flyover and held a large public meeting on Jan. 9. Brockovich said that she came to Tennessee at the request of dozens of residents.

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