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The Associated Press September 15, 2011, 12:21PM ET

Trial starts on damage lawsuits in TVA ash spill

Two armies of attorneys face off in federal court Thursday over lawsuits that claim the Tennessee Valley Authority should pay damages over a huge coal ash spill that fouled a riverside community.

The bench trial before U.S. District Judge Thomas Varlan is expected to last about two weeks.

The six lawsuits seek damages from a Dec. 22, 2008, earthen dam collapse that spilled 5.4 million cubic yards of sludge from a storage pond at TVA's coal-fired Kingston Plant on the Emory River west of Knoxville. Nearby residents and property owners contend TVA was negligent in constructing, maintaining and inspecting the dam.

The spill, described by the Environmental Protection Agency as "one of the worst environmental disasters of its kind," ruptured a natural gas line, disrupted power and transportation, ruined three homes and forced the evacuation of the nearby residential community in Roane County. Residents said the spill ruined quiet country living focused on fishing, boating and being outdoors.

Coal ash contains arsenic, selenium, lead and mercury, which can pose health risks. Coal ash has not been regulated as hazardous.

Less than a month after the spill, as the Obama administration was coming in, incoming EPA administrator Lisa Jackson promised to review that stance and suggested it would take months, not years. The agency has yet to issue any new regulations.

TVA has estimated the cleanup, which isn't finished, will cost $1.2 billion. The utility is self-funding, so ratepayers in the seven-state region are paying the tab with higher electric bills.

As a federal utility, TVA contends it is protected from some liability claims. It also maintains that under Tennessee law it has no legal duty to keep its reservoirs and shorelines safe for the plaintiffs' recreational use and enjoyment. TVA has said plaintiffs have not shown that ash particles were transmitted to their properties in "concentrations sufficient to cause property damage and/or personal injury or to constitute a taking."

While hundreds of people have stakes in the court fight, the first trial will deal only with liability. More than 40 other lawsuits are set for a Nov. 1 trial that will individually decide any damages.

Plaintiffs' attorneys who said they cannot comment about the case have others waiting to possibly file lawsuits before the opportunity to pursue a claim runs out in December.

"Our clients are looking forward to our day in court," said plaintiffs" attorney Elizabeth Alexander of Nashville.

TVA attorneys have not responded to requests for comment from The Associated Press.

Before the trial, the judged granted TVA motions to dismiss claims for punitive damages, personal injury, emotional distress and inverse condemnation. He allowed claims for property damages, trespass and nuisance to go forward.

TVA said in a statement before the trial it is "committed to restoring the Kingston area, and we are following through on our pledge to clean up the ash while protecting public health and safety."

The utility's statement said its work with the community includes removing more than 3.5 million cubic yards of ash and sediment from the Emory River, providing health screenings on request to affected residents, and giving $43 million to a Roane County foundation for community betterment.

TVA has also announced plans to develop public recreation areas and ball parks, greenways, walking trails and boat ramps in the spill-affected area.

The utility also has pledged to convert to dry storage the coal ash at all of its 11 coal-powered plants in Alabama, Kentucky, Mississippi and Tennessee.

TVA, which was created in the 1930s to build dams and bring electricity to the impoverished Appalachian region, produces about two-thirds of its electricity from coal power. It has a long-term plan to get more power in the future from nuclear facilities.

TVA's statement said it has purchased more than 180 properties and settled more than 200 other claims from people living near the spill.

Property owners who have settled with TVA had to agree not to sue or publicly discuss the settlements.

Loretta Smith, 57, of Lyons, Ill., an affected property owner who has not been offered a settlement, is closely watching the trial. She and her husband had once planned to retire on 25 acres they bought years before the spill.

The couple was trying to sell the land for $225,000 and then buy a house in the community when the sludge spilled. She said the property is on a creek less than a mile from the river and the sludge came into a cove and the creek at the edge of her property. She said TVA has bought property all around them.

Smith said there are no buyers and she and her husband are now stuck with $600-a-month payments on their land, plus taxes. She said TVA has never called or written and won't return their calls.

"I'm actually very excited that it's finally going to come to some closure as soon as possible. It's been three years and we're still waiting," Smith said Wednesday. "Just because they are part of the government doesn't mean they should be able to get away with destroying people's lives and dreams."

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