Posted by: Lawyer Sanders | March 29, 2010

Kentucky environmental attorney Sanders says lawsuit against TVA related to Kingston fly ash pond collapse is moving ahead sans punitive damages.

A federal judge threw out lawsuits seeking to financially punish the federal Tennessee Valley Authority for its 2008 spill of toxin-laden coal ash but he will let suits seeking compensatory damages proceed.

The amount of compensatory, or economic, damages will be decided by a jury at trial.  Punitive damages are sometimes awarded to punish willful, wanton, and wrongful or grossly negligent conduct.  The ruling by U.S. District Judge Thomas Varlan is 80 pages long.  In short, the federal judge believes punative damages should not be awarded against a federal agency in federal court.

Court records show the damage claims total a estimated $165 million. The compensatory damages are subject to dispute in court. TVA contends it was acting as a government agency and does not have to pay damages beyond the compensation it has already negotiated with affected property owners and local governments.

The spill involved 5.4 million cubic yards of ash that breached an earthen dike at TVA’s Kingston Plant on Dec. 22, 2008. The EPA has said the Kingston ash contains arsenic, cadmium, chromium, lead, mercury, nickel, selenium and zinc, all hazardous substances as defined by the Superfund law. A projected $1.2 billion cleanup is ongoing.

 TVA previously said it reached agreements to pay settlements to owners of 150 pieces of property and about 33 settlement offers were not accepted. TVA previously agreed to pay $43 million to local governments for use on projects that will improve community life but aren’t related to the environmental disaster.

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