Wary residents sue TVA

By Brad Schrade
THE TENNESSEAN

The tricycle at Peggy Blanchard's home sits idle in her garage, intentionally tucked out of sight so her 4-year-old granddaughter won't ask to ride.

Blanchard got it as a Christmas present for the little girl, but she's afraid to let her go outside to play ever since the TVA coal ash disaster rearranged life in their community. It's little comfort to Blanchard and many of her neighbors in the waterfront Duck Pond community that the potentially toxic sludge didn't directly pour across their land. They still feel its impact.

The uncertainty has led several property owners, people like Blanchard, to join one of the lawsuits already filed since the Dec. 22 Kingston disaster. So far at least four suits have been filed, three of them in federal court.

The outcome of these lawsuits could have an impact on citizens across Tennessee and the other six states where the Tennessee Valley Authority operates and depends on ratepayers to fund its operation.

And TVA could face significant claims, possibly in the tens of millions of dollars or even hundreds of millions, once all the lawsuits are filed, said Richard Nagareda, a Vanderbilt University law professor who specializes in class-action lawsuits and environmental law.

"My main concern is not to make money but to redeem my losses," Blanchard said. "I grieve as much for the environment here as for the losses the people have suffered. This was such a beautiful area before this."

Nagareda said such cases are often consolidated into a single class-action suit, and the claims on damages will be determined by the number of people affected and the type of material that has spilled into the environment. He said an exact figure for the damages is difficult to pin down this soon.

"It comes in different ways whether it's damages to the private property owners or the costs of various measures to address the situation as it is now," Nagareda said. "That's why you're seeing these various lawsuits. I think lawyers recognize this is going to be a high-stakes matter."

27 families displaced

One issue that will have to be sorted out is whether TVA's status as a quasi-government or federal entity will allow it to be sued, he said. Nagareda said he had not researched the issue, but imagines it could be raised in legal proceedings at some point.

Plaintiffs' attorneys say TVA may try asserting such status, but the law is not on the agency's side.

"TVA will probably claim what they call 'sovereign immunity,' " said Mark Chalos, a Nashville attorney with Lieff, Cabraser, Heimann & Bernstein, one of the firms representing property owners in the case. "The law is clear that in cases like this they can be held accountable for any harm they have caused."

TVA said it's aware of three of the four lawsuits that have been filed, and plans to answer them in due time. Authority spokesman Gil Francis said right now TVA is trying to assist property owners who have been affected.

Thus far, 27 families have been displaced in temporary housing being paid for by TVA, he said. Some were staying in hotels while others were moved into more permanent housing.

Francis said 444 claims related to the spill have been filed with TVA from people in the area. Some 311 are claims related to real estate while 117 others are related to health concerns. The rest are related to some personal property damage, he said.

He said that once people get a lawyer, however, TVA can't deal with them through their help center regarding these claims. Legal protocols require lawyers for both sides to then sort out the issues, he said.

"If TVA is working with you, and we'll work with you ... that's one avenue," Francis said. "If you decide you want to get a lawyer, that's another avenue, but you've given up the one-on-one (with TVA) because now you have a lawyer representing you and there are certain protocols."

Some wait for TVA help

Some residents, such as Charlotte Phillips, who lives about a mile from the spill, are trying to work with TVA and avoid a lawyer. She met with TVA representatives more than two weeks ago about her family's concerns, and the authority representatives told her she'd hear something back within five days.

As of Thursday, she'd heard nothing back; meanwhile she and her husband's worries about their property values and the health of their 5-year-old daughter are still ever present. The spill, while not directly hitting their property, has led to more truck traffic, dust and uncertainty about what the future holds for their small community.

They must drive by the spill whenever they come or go from their house, and she has no answer to give her daughter when she asks why their lake is broken.

"I've not gotten an attorney yet because I hear once you get an attorney TVA won't talk to you," she said. "At the same time, I'm not getting any communication from them now. ... You don't know who to believe and trust. It's a hard decision to make. Do you need representation or do you wait it out?"

Mary Parker, a Nashville attorney with Parker & Cofford, which is representing some of the property owners, including Blanchard, said her clients' concerns include short- and long-term health risks, possibly years into the future, from the spill. They are seeking medical monitoring paid for by TVA. The full extent of what will be needed is not yet known, she said.

"We need to see how the cleanup is going and what the tests are showing," Parker said.

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