Testimony opens in trial over TVA coal ash spill

September 19, 2011 - 5:00 PM

KNOXVILLE, Tenn. (AP) — An attorney for property owners seeking damages for the Tennessee Valley Authority's huge 2008 coal ash spill told a federal judge Monday that the TVA's own records show years of negligent conduct preceded the disaster, but a TVA attorney rejected that claim .

The lawyer for the nation's largest public utility, addressing the court, compared the breach in an earthen dike to an internal crack in a wing that brings down an airplane.

With attorneys for the nation's largest public utility arrayed on one side of the courtroom and attorneys for hundreds of plaintiff on the other, the bench trial launched a court fight that will continue well into next year over responsibilities for the spill of 1.2 billion gallons of toxic-laden sludge on the Emory River in Tennessee.

Piles of boxes sit on each side of the court, and attorneys have said more than 3 million pages of documents have been filed in the first court case involving the disaster. Yet another trial is set in November over the spill, at the Kingston Plant west of Knoxville.

Plaintiffs' attorney Jeff Friedman said in an opening statement that TVA records, from the decades and months before the spill, would show that the utility ignored warnings about storing the ash. He said the spill from a breach in an earthen dike at the Kingston Plant early on Dec. 22, 2008, meant "life would change for hundreds of families."

The spill ruptured a natural gas line, ruined three homes and forced the evacuation of a nearby residential community while also disrupting power and transportation. Plaintiffs contend the spill ruined quiet country living focused on fishing, boating and the outdoors.

"It was 100 percent a man-made disaster caused by TVA as a result of negligent conduct," Friedman argued.

TVA attorney Edwin Small disagreed in court as he pressed his argument about an internal crack in a plane's wing. "The internal crack causes that plane to fall out of the sky because the wing falls off," Small said.

The first witness, TVA civil engineer Chris Buttram, testified that he began working at the utility in June 2008 and was with two other TVA employees two months before the spill to conduct an annual stability inspection of the ash pond at the Kingston Fossil Plant.

Friedman said evidence will show that TVA's negligence included failing to properly train employees about its coal ash impoundments. He said TVA was warned decades ago that there were limits to continuing to contain the byproducts of the burning if some 14,000 tons of coal at the plant each day by using ash instead of concrete or steel. He said wet, rainy conditions contributed to the dikes becoming soggy and monitoring equipment "fell into disrepair" — in some cases mowed down by tractors.

"They knew this because it happened before," Friedman said of blown dikes in 2003 and 2006.

Called to the stand by Friedman as an adversarial witness, Buttram testified he was training on the job and described the inspection as being just a "visual inspection." Buttram said he had never previously carried out such an inspection and did not consider himself to be the lead engineer that day but was there for "training."

When Friedman asked Buttram about a Tennessee Valley Authority Inspector General's Office document that identified Buttram as the lead engineer during the pre-spill inspection, Buttram said he could not recall telling them that.

"I don't know who was the lead engineer," he testified, adding he didn't finish the report until after the spill.

Though the ash contains arsenic, selenium, lead and mercury and the Environmental Protection Agency described the spill as "one of the worst environmental disasters of its kind," the federal agency has delayed deciding if it should be regulated as hazardous.

The utility has given the community a total of $43 million to spend on projects such as schools, sewage system upgrades and public relations aimed partly at attracting northern retirees to move in. Another $47 million has been spent buying up nearby properties and the utility has paid penalties totaling $11.5 million.

Owners of more than 170 properties negotiated buyouts and have moved, with the cleanup continuing.

TVA in court filings contends environmental tests and medical surveys show the spill has caused no harm. The Knoxville-based utility is spending $1.2 billion to clean up the spill. It contends that as a federal agency, it has immunity for all but proven compensatory damages.

TVA supplies power to about 9 million people in Tennessee, Kentucky, Alabama, Mississippi, Georgia, North Carolina and Virginia.