‘Some horrible nightmares’
Still from a video by United Mountain DefenseAny hopes TVA had for avoiding litigation over the disaster were dashed in March 2010, when a federal judge ruled that plaintiffs in seven suits would be allowed to argue that the company was negligent in the use and maintenance of the Kingston coal ash pond. In all, more than 500 plaintiffs have filed more than 50 lawsuits against the company in connection with the spill.
“This is a tremendous victory in the effort to hold TVA accountable for the severe damage it has caused to residents and the environment,” said Elizabeth Alexander, one of the attorneys representing plaintiffs suing the company. “The Court held that TVA must answer for its alleged negligence that directly led to one of the largest environmental catastrophes in our country’s history.”
The court’s decision wasn’t a complete win for the plaintiffs, as the judge ruled that they couldn’t ask for punitive damages or a jury trial. But the ruling rejected claims by TVA — a federally owned but independently financed corporation serving almost 9 million customers in seven Southern states — that it’s immune from legal action as a government agency. The court held that once a policy decision has been made, the government is accountable for its negligence in implementing it.
While the lawsuits wind through the courts, residents near the Tennessee plant continue to grapple with the lingering health risks unleashed by the disaster. TVA has bought out more than 140 property owners, but other affected residents say the utility isn’t offering them fair compensation for their property, or their property isn’t considered close enough to qualify.
The spill dumped 2.66 million pounds of 10 toxic pollutants into the Emory and nearby Clinch rivers — more than all the surface-water discharges from all U.S. power plants in 2007, according to a report from the Environmental Integrity Project. Independent tests sponsored by EIP and United Mountain Defense and conducted more than two months after the disaster found levels of some toxic metals including arsenic, cadmium, and lead exceeding Clean Water Act standards designed to protect aquatic life as well as humans who come in contact with the water.
The ash also accumulated on the land, where it can dry out and become an air pollutant — a concern since EPA found dangerously elevated levels of arsenic in coal ash samples taken from a road at the disaster site.
Residents blame the ash spill for a range of ailments they began experiencing after the disaster. Gary Topmiller and his wife, Pam, live across the river from the failed impoundment. In the months following the spill, Pam Topmiller’s eyes regularly swelled shut until the couple installed air filters in their home.
Connie Kelley, a resident of the area directly impacted by the spill, reported other problems: “Since the spill I have been having a lot of headaches, eyes burning and itching, coughing, nose bleeds and some horrible nightmares. I never had a nightmare in my life until this.”
Dumping on the disadvantaged
Photo: John WathenThe toxic nightmares that haunt residents near TVA’s Kingston plant are now disrupting the peace of another community in Perry County, Ala. That’s where the company — with EPA’s approval — chose to dispose of the 3 million cubic yards of coal ash scraped up from the spill site.
For the past year, Tennessee’s toxic sludge has been shipped 320 miles south to the Arrowhead Landfill near Uniontown, Ala., a facility owned by Perry County Associates and managed by Phill-Con Services and Phillips & Jordan. TVA said it chose the site because it was accessible by train, underbid other candidates and had the capacity to handle all the ash. Under Alabama law, coal ash isn’t regulated and doesn’t have to be placed in a lined landfill like Arrowhead; however, ash from the Kingston spill is considered remediation waste and is regulated more strictly.
For Perry County, Ala., the coal ash shipments are being touted as a much-needed financial boost: The fee paid by the landfill operators is expected to increase the county’s annual budget from $4.5 million to $7.5 million.
“The economic development opportunity, along with safe environmental management practice, has put renewed hope back into a once-proud county,” Perry County Commissioner Albert Turner Jr. testified to a U.S. House committee in December 2009.
But not everyone has been so enthusiastic. Community leaders and environmental advocates pointed out that Perry County is almost 70 percent black, with more than 31 percent of its families in poverty — a classic case of environmental injustice.
The disparity is even starker when one looks at the community closest to the dump: Uniontown, Ala. is 88 percent African-American with almost half of its residents living in poverty, according to 2000 Census data. Residents called on EPA Administrator Lisa Jackson to protect them from the toxic waste.
“There’s a sense among the population that we’ve been thrown under the bus,” Robert Bamberg, a white catfish farmer and organizer of Concerned Citizens of Perry County, told the New York Times last year.
The decision to allow TVA to dump its coal ash in Perry County was among a number made by EPA Region 4 that were highlighted in a September 2009 report by Professor Robert D. Bullard, director of the Environmental Justice Resource Center at Georgia’s Clark Atlanta University. Bullard called on the EPA national office to investigate Region 4’s historic treatment of black communities in the Deep South.
“Nearly four decades of Region 4 harmful and discriminatory decisions have turned too many black communities into the dumping grounds, lowering nearby residents’ property values, stealing their wealth, and exposing them to unnecessary environmental health risks,” Bullard wrote.
He noted that EPA Region 4 justified the Perry County decision in its “Frequently Asked Questions” page by declaring the landfill to be in “an isolated area, surrounded by large tracts of property, farms, and ranches.” But as Bullard pointed out, there’s an established black community on two sides of the landfill, with a population large enough to support three churches.
And now there’s evidence that the health threats to nearby Perry County residents are becoming a reality: In February 2010, Hurricane Creekkeeper John Wathen of Alabama filed a complaint with the EPA documenting serious problems at the facility. They include runoff tainted with cancer-causing arsenic at levels more than 80 times the U.S. safe drinking water standard; an excessive amount of wet waste being dumped into the landfill, threatening the structural integrity of the protective liner; and toxic coal ash falling from overloaded, uncovered trucks and spilling along the haul road. To date, the EPA has declined to act on his complaint.
“Why is Perry County being treated like this?” asked Wathen, who called for the ash shipments to be halted until the problems are fixed. “Are the people in Perry County any less valuable than the people of Kingston, Tenn.?”
Meanwhile, Florida attorney David Ludder has announced plans to sue the landfill operators for violations of the Solid Waste Disposal Act and the Clean Air Act on behalf of 155 local residents. He had previously planned to sue the facility’s owners, but they filed for bankruptcy in January 2010 — a move that prevents any new lawsuits from being filed against them until the bankruptcy proceedings are settled.
Ludder’s notice of intent to sue argues that the odors from the landfill are “injurious to human health and welfare, interfere with the enjoyment of life and property, are unpleasant to persons, tend to upset appetite, lessen food intake, interfere with sleep, produce irritation of the upper respiratory tract, and cause dizziness, headache, nausea, and vomiting.”
Last week, TVA announced that it would stop sending the spilled coal ash to the Alabama landfill this fall and begin storing the ash at an unlined facility near the disaster site in Tennessee. Storing the ash on site will be cheaper than shipping it out of state, giving the company a shot at keeping cleanup costs under $1.2 billion, TVA officials told the Associated Press.
With millions of cubic yards of TVA’s coal ash destined to remain in their community for the foreseeable future, the residents of Perry County will be living with fallout from the Kingston spill for years to come. In the meantime, other communities across the country are facing problems of their own from coal ash — the result of a failing regulatory framework that only now, a year and a half after the Tennessee disaster, some leaders in Washington say they want to fix.
TOMORROW: Power Politics: How energy interests have kept coal ash from being regulated as a hazardous waste — and the looming battle in Washington to change the way coal ash is treated under law.
Sue Sturgis is an investigative reporter and editorial director of Facing South. This piece is the second installment in an in-depth, week-long series on the growing national problem of coal ash and the political battle over regulations. To read the first installment, titled “Coal’s Dirty Secret,” click here.