Tennessee 3 years after ash spill, hundreds wait on judge

By Bill Poovey Associated Press KINGSTON, Tenn. (AP) -- Three years after a huge spill of toxin-laden sludge in East Tennessee, most of the gray muck has been hauled off or hidden while hundreds of property owners who claim financial harm are mired in a court fight. No one was physically hurt in the Dec. 22, 2008, spill of coal ash from a Tennessee Valley Authority plant storage pond into the Emory River and across some 300 acres in the picturesque Swan Pond community about 35 miles west of Knoxville. But property owners in the area say they have been hurt financially. TVA, the nation's largest public utility, has since dredged more than 3.5 million cubic yards of coal ash from the river and sent it off in 40,000 rail cars to an Alabama landfill. Much of the remaining muck in the 5.4 million cubic yards that spilled from a breach in an earthen dike at TVA's Kingston Plant is being hidden underground. Before the Christmas season spill, the plant's riverside ash storage areas had sides 55 feet above the nearest road, with piles of ash reaching 50 to 60 feet above water in the ponds. TVA is continuing a $1.2 billion cleanup of the spill the Environmental Protection Agency described as "one of the worst environmental disasters of its kind." The spilled ash that contains hazardous substances such as mercury, cadmium, selenium, arsenic, lead, chromium and zinc destroyed or damaged about two dozen homes but the scarred landscape already shows an area with a green tint, with some glistening waters nearby. "They have done a good job," said Charlotte Branson, a real estate broker and owner of ERA Executive Choice Real Estate in Kingston. "It is actually better than it was." TVA has purchased about 900 acres near the plant from about 150 owners -- for $46 million -- and plans to remove 63 homes. Boat houses, docks, swimming pools, outbuildings and driveways are also to be demolished. The utility has pledged $43 million for community projects and is developing the area near the spill into wetlands next to a 240-acre natural area, fishing piers, boat docks, a walking trail and ball fields. Meanwhile, more than 500 people seeking damages from the disaster are mired in a legal fight in a Knoxville courthouse. Those suing -- property owners claiming they suffered financial harm -- have their hopes clinging to a federal judge's eventual ruling from a lengthy bench trial that ended in October. With attorneys allowed until Jan. 12 to file post-trial briefs, a ruling by U.S. District Judge Thomas Varlan is likely months away, and the trial outcome only addresses TVA's liability for the spill. If he rules that TVA is liable, damage amounts would be decided later. "If he rules in their favor we are just stuck," said Gilbert Pickel of Kingston, one of the plaintiffs. Pickel said he no longer sees as many people in the water from his riverside yard that overlooks the Clinch River and has a prominent view of the confluence of the Emory and Clinch rivers and a steam-belching smokestack at the Kingston Plant. Pickel, 84, said his property, with a 3,200 square foot house, swimming pool, boathouse, two-car garage and storage house downstream from the spill was priced at about $750,000 before Dec. 22, 2008. Pickel said that's when he and his wife, Linda, were planning to sell their house and move into something smaller in the picturesque, water playground community. They have since had real estate agents tell them they can't help sell it. Other property owners who have filed lawsuits in recent weeks, ahead of a three-year deadline, could possibly get separate trials in 2012 and beyond. "We have been signing up new clients," said Gary Davis, an attorney for some of the suing property owners. TVA attorneys in a statement last week said the utility understands that some plaintiffs who did not participate in the trial "may not be bound by the court's decision." TVA told The Associated Press last Friday that its payouts to an outside law firm to fight the lawsuits so far total nearly $11 million. Davis said spending by TVA could have compensated a lot of people, including those who "can't sell their property and may never be able to sell their property." At trial, attorneys for TVA argued the spill wasn't caused by negligence but a deep foundation failure unrelated to its employee training, maintenance and construction practices. TVA contends environmental tests and medical surveys show the spill has caused no harm, that dredging of ash from the river has been finished and that the spill and cleanup otherwise have not caused any problems that would justify payouts in damage lawsuits. "My son wakeboards in the water," said Bob Deacy, a TVA senior vice president at the spill cleanup site. TVA, which provides electricity to about 9 million customers in most of Tennessee and parts of Alabama, Mississippi, Kentucky, Georgia, North Carolina and Virginia, has customers paying an average of 69 cents a month until 2024 to fund the cleanup that is expected to be mostly finished by 2014. TVA executives and Craig Zeller, EPA's on-site overseer of the spill cleanup, said monitoring shows air quality in the area is "great" and surface water "looks good," which he described as somewhere between recreational and drinking quality. Zeller said the monitoring will continue indefinitely. With the river dredging finished, the ongoing second phase of the cleanup includes restoring the landscape and building a massive, 11,500-foot, underground wall around the area where wet stored coal ash remains. TVA has changed to dry ash storage at the plant. Since proposing tougher restrictions on coal ash disposal after the spill, the EPA has delayed making a decision and faces mainly Republican political opposition in Congress. Manufacturing interests that use coal ash in products such as wallboard and cement contend that regulating it as hazardous would cause them significant financial harm. Branson said the spill has had a negative effect on the real estate market, particularly on prospective buyers most attracted by the community's "ambiance and the waterfront." She said Google searches for Kingston, Tenn., and the Emory River still prominently show the spill. "There are a lot of properties that still won't sell because they are too close to it," Branson said. She said some people who years ago bought waterfront property for $200,000 and before the spill possibly saw the market value climb to $300,000 may feel like the spill is the only reason the value has dropped. "The ash spill hit when the economy was going down," she said. Property owners who were bought out by TVA are considered to be the lucky ones by the Pickels and others awaiting the judge's decision. Those who made purchase agreements are forbidden from discussing the transactions. TVA has been hit with spill-related penalties totaling $11.5 million, partly to pay for oversight of the cleanup. Published: Thu, Dec 22, 2011