No one is watching the fallout over the TVA coal ash disaster more closely than Kentucky attorney Tony Oppegard. As the former adviser to the assistant secretary for Mine Safety & Health Administration (U.S. Department of Labor) and former general counsel for the Kentucky Department of Mines and Minerals, Oppegard served as the lead investigator for MSHA during the Martin County, Kentucky, coal slurry impoundment failure in the fall of 2000.

As a political appointee, Oppegard lost his job in January 2001 after George W. Bush took office. A career MSHA employee was brought in to take his place and the “investigation” ended quickly, despite the fact that the Martin County coal disaster was one of the worst in history.

I asked Oppegard a few questions about the TVA coal ash disaster, the impending investigation, and what we had learned since the Martin County coal accident.

Biggers: You were the lead investigator of the Martin County Coal Corporation slurry impoundment failure in 2000. Why do you think that disaster received such little media attention?

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Oppegard: Primarily because it occurred in rural eastern Kentucky — and few people outside of those who live there really care about what happens to the land and people of Appalachia. If the impoundment failure had happened in California or New York, it would have been front page news in The New York Times and the Washington Post. Can you imagine emergency rooms in Los Angeles being shut down because of a lack of clean water? Instead, it was deemed “not really that important” by most of the mainstream media. When wildfires consume beautiful homes in the hills of California, it headlines the CBS evening news. But when creeks are fouled and thousands of people go without water for weeks in Appalachia, somehow it’s not considered “newsworthy.”

Biggers: Why do you not like the term “spill,” as it is being used with the TVA coal ash disaster?

Oppegard: Because it tends to diminish the severity of this environmental disaster. A spill implies something benign (“I spilled my milk”), and many folks won’t read past the headline. It also implies that it was “just an accident” — that is, that it wasn’t foreseeable and that gross negligence or criminal conduct didn’t occur, which I certainly would not assume at this point. To the contrary, I assume that there was gross negligence in this case.

Biggers: What are your main concerns about the impending investigation of the TVA coal ash break?

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Oppegard: My main concern is that this disaster be thoroughly and impartially investigated, that the TVA’s role in the disaster be part of the investigation, and that the investigators let the chips fall where they may. If the TVA had knowledge of previous structural problems with the retention dam, I would want to know the severity of the problems; what, if anything, was done to remedy the problems; and who was responsible for maintaining the structural integrity of the dam. I would also want to know whether local citizens were fully informed of the location and size of the dam, and whether the citizens were informed of any previous problems that had occurred.

Biggers: Who should be held accountable for these types of environmental accidents, or do you actually refer to them as organizational failures?

Oppegard: Whoever was responsible for deciding how to dispose of the coal ash, and whoever was responsible for disposing of the ash in a responsible manner. The first question is whether a retention dam is the best way to dispose of the coal ash. In addition, the federal government should be responsible for inspecting and regulating these structures. You simply cannot trust the coal industry or the TVA to regulate itself. After a disaster like this, it becomes apparent that the coal industry’s incessant complaint that “only the worst companies” should be inspected is nonsense. No one in the industry thinks that they are the bad guy; it’s always “the other guy” that needs to be inspected … And as has happened so many times, what appears to be a “good safety record” on paper is really a mirage … A lot of outlaw coal companies look good on paper. But after a disaster occurs, a closer look reveals just the opposite — i.e., it should have been clear all along that this was a “disaster waiting to happen.” I suspect that if a thorough investigation is done here, there will be numerous warning signs that the retention dam might fail which were either ignored or taken lightly.

Biggers: How can citizens groups assist investigators?

Oppegard: Because citizens have been adversely affected by the disaster, if I were heading up the investigation, I would convene a true public hearing to determine not just how the breach occurred physically, but why conditions deteriorated to the point that the failure occurred. I would certainly include citizens on the hearing panel — they have a greater right to know exactly why this disaster occurred than anyone else. Citizens should also be questioned by the investigation team as to whether they had documented previous problems with the dam and, if so, whether they had contacted the TVA about those problems. Finally, I would want all the video footage and still photos possible to accurately reflect the environmental damage that has occurred. A lot of that documentation could be obtained from local citizens. Whatever form the investigation takes, it has to be done openly and honestly — and affected citizens shouldn’t be viewed as nuisances or as flies in the ointment of government. If a public hearing is not convened and witnesses are interviewed in private, then employees of the TVA should not have to testify in the presence of their superiors, which is intimidating. In other words, TVA personnel should not be allowed to sit in on the interviews. The TVA can conduct its own investigation; there is no need for it to sit in on the investigating entity’s inquiry.

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