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In Re: Tennessee Valley Authority Ash Spill Litigation

March 24, 2011

IN RE: TENNESSEE VALLEY AUTHORITY ASH SPILL LITIGATION


The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

MEMORANDUM OPINION AND ORDER

This litigation consists of the more than fifty above-captioned cases filed against defendant Tennessee Valley Authority ("TVA") following the December 22, 2008 failure of a coal ash containment dike at TVA's Kingston Fossil plant in Roane County, Tennessee (the "KIF plant"). Before the Court are TVA's Motions for Summary Judgment on Plaintiffs' Tort Claims on the Non-discretionary Conduct Issue (the "Non-discretionary Conduct Motions") [Doc. 176].*fn1

In the Non-discretionary Conduct Motions, TVA has moved for summary judgment on all plaintiffs' tort claims on grounds that plaintiffs have not shown that non-discretionary conduct by TVA caused the dike failure and resulting coal ash spill. In opposition to TVA's motions, plaintiffs have submitted five separate response briefs: the Chesney brief [Chesney, et al. v. TVA, et al., Case No. 3:09-CV-09, Doc. 192]; the Turner brief [Turner, et al. v. TVA, Case No. 3:09-CV-495, Doc. 45];*fn2 the Armes brief [Armes, et al. v. TVA, Case No. 3:09-CV-491; Doc. 36];*fn3 the Mays brief [Mays v. TVA, Case No. 3:09-CV-06, Doc. 100];*fn4 and the Daugherty Brief [Daugherty, et al. v. TVA, Case No. 3:10-CV-189, Doc. 34].*fn5 TVA has filed consolidated reply briefs to plaintiffs' five response briefs [Doc. 202]. Plaintiffs submitting the Chesney brief have filed a supplemental brief [Doc. 262], to which TVA has filed a response [Doc. 270].

For the reasons stated herein, TVA's motions will be GRANTED in part and DENIED in part.

I. Relevant Factual and Procedural Background*fn6

Plaintiffs filed the above-captioned cases against TVA following the dike failure and coal ash spill at the KIF plant on December 22, 2008.*fn7 In the complaints, plaintiffs allege that they reside, own property, and/or own businesses within the vicinity of the ash spill. While not identical, the complaints assert similar allegations and tort law causes of action-e.g., negligence, negligence per se, gross negligence, trespass, nuisance, and strict liability. Several plaintiffs request that TVA be ordered to fund medical monitoring and several plaintiffs allege claims for inverse condemnation. Plaintiffs are seeking compensatory damages and/or injunctive relief.

In April 2009, TVA filed motions to dismiss or for summary judgment on grounds that the federal discretionary function doctrine applies to TVA and requires dismissal or summary judgment of all plaintiffs' tort claims ("the discretionary function motions") [see Doc. 46]. Following the filing of the discretionary function motions, various entities released reports about the dike failure and ash spill. Both plaintiffs and TVA have filed these reports in the records of these cases and the parties have cited the reports and discussed each throughout this litigation, including in the briefs presently before the Court. Because the reports are the subject of much discussion in the parties' briefs and are cited and referred to by both plaintiffs and TVA, the Court will discuss the findings of these reports in section III, subsection C, of this opinion.

On March 26, 2010, following briefing by plaintiffs and TVA, the Court ruled on TVA's discretionary function motions (the "Mays opinion"), finding that the discretionary function doctrine applies to TVA and protects TVA's conduct that was grounded in considerations of public policy and involved the permissible exercise of policy judgment. See Mays v. TVA, 699 F. Supp. 2d 991, 1016, 1019 (E.D. Tenn. 2010). The Court also found, however, that plaintiffs had challenged conduct apart from TVA's protected policy decisions. Mays, 699 F. Supp. 2d at 1022.

On February 19, 2010, the plaintiff in Crichton v. TVA filed a motion for summary judgment as to TVA's liability, asserting that there were no genuine issues of disputed material fact in regard to whether TVA's improper maintenance caused the dike failure and ash spill and resulted in harm to the Crichton plaintiff [Crichton, Case No. 3:09-CV-592, Doc. 20]. The Court denied the Crichton plaintiff's motion for summary judgment on June 15, 2010 (the "Crichton opinion") [Id., Doc. 58]. See Crichton v. TVA, No. 3:09-CV-592, 2010 WL 2484193 (E.D. Tenn. Jun. 15, 2010).

On July 16, 2010, TVA filed the Non-discretionary Conduct Motions.

II. Standard of Review

A court may grant summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). The Court views the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).

"Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations." Curtis Through Curtis v. Universal Match Corp., Inc., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Liberty Lobby, 477 U.S. at 248.

The Court's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. Liberty Lobby, 477 U.S. at 250. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the record "to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus, "the inquiry performed is the threshold inquiry of determining whether there is a need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.

III. Analysis

A. Plaintiffs' Requests for Additional Time for Discovery

The Court first turns to plaintiffs' requests for additional time to engage in discovery prior to the Court's ruling on the Non-discretionary Conduct Motions. Plaintiffs in Turner and Armes assert that TVA's motions are premature because certain depositions have not taken place and they anticipate "additional evidence, expert testimony, and lay testimony that will further support their claims." [Turner, Doc. 45, p. 8; Armes, Doc. 36, p. 20]. TVA opposes plaintiffs' requests.

When a summary judgment motion is filed, the party opposing the motion may, by affidavit under Rule 56(f), explain why he or she is unable to present facts essential to justify the party's opposition to the motion. See Fed. R. Civ. Pro. 56(f); Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003). "The burden is on the party seeking additional discovery to demonstrate why such discovery is necessary." Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004). Bare allegations or vague assertions of the need for additional time for discovery are not enough. United States v. Cantrell, 92 F. Supp. 2d 704, 717 (S.D. Ohio 2000) (citing Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 409 (6th Cir. 1998)). The U.S. Court of Appeals for the Sixth Circuit has found that a party must make such a request with "'some precision" and must state "the materials he hopes to obtain with further discovery, and exactly how he expects those materials would help him in opposing summary judgment.'" Summers, 368 F.3d at 887 (quoting Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 1144 (Fed. Cir. 1996)). Plaintiffs in Turner and Armes have done neither.

The dike failure and ash spill occurred on December 22, 2008. It is now more than two years since the spill and the filing of the first cases. Neither the clean-up nor discovery in these cases has yet been completed, but both have been ongoing since the filing of the first case. In addition, all discovery has been made available to all parties. Further, after TVA filed the Non-discretionary Conduct Motions, plaintiffs requested and were granted extensions of time to file responses to TVA's motions [Doc. 182].*fn8

In regard to plaintiffs' present requests for additional time, the Court notes that no supporting affidavits have been filed explaining why plaintiffs are unable to present facts essential to plaintiffs' opposition arguments or explaining why specific discovery is necessary. To the extent plaintiffs rely on the affidavit filed on June 29, 2010 by Mr. Ryan C. Edens, counsel for plaintiffs in Turner [Turner, Doc. 39-1], the Court has reviewed that affidavit and finds that it neither specifies with sufficient precision what plaintiffs hope to obtain with further discovery, nor describes how such discovery would help plaintiffs in opposing TVA's motions. While the Court agrees that discovery in this litigation is indeed substantial, in light of the amount of time plaintiffs have had to review the discovery, the extensions of time allowed, the absence of sufficient affidavits, and because the Court has been presented with no other reason for determining that TVA's motions are premature, plaintiffs' requests for additional time to conduct discovery prior to the Court's ruling are DENIED.

B. The Mays and Crichton Opinions

The Court will now review the Mays and Crichton opinions to properly frame the issues before the Court and because the parties' briefings on the Non-discretionary Conduct Motions should be considered in the context of those opinions. In Mays, the Court observed that "[t]he nature of the decisions giving rise to the various types of conduct challenged by Plaintiffs no doubt involved elements of choice and judgment." Mays, 699 F. Supp. 2d at 1019. The Court found that some of the conduct challenged by plaintiffs was protected by the discretionary function doctrine because the conduct was clearly grounded in considerations of public policy and involved the permissible exercise of policy judgment. Id. The Court found this protected conduct to include: TVA's decisions regarding the KIF plant's location, design, and manner of construction; TVA's decisions as to what polices and procedures governed coal ash disposal; TVA's decisions regarding modifications or redesigns of the KIF plant; and TVA's decisions as to whether to continue operating the KIF plant as a wet coal ash storage facility. Id. at 1019, 1020-22. The Court did not determine "whether the choices and judgments inherent in all [TVA's] relevant decisions were grounded in considerations of public policy." Id. at 1019 (emphasis added). Accordingly, the Court recognized that plaintiffs had challenged conduct apart from the aforementioned policy decisions and concluded that TVA was not protected by the discretionary function doctrine to the extent plaintiffs' had made allegations regarding:

Neglect of the facilities, neglect of day-to-day maintenance, ignoring policies and procedures, failing to implement corrective measures or modifications under those policies or procedures, and the failure to have in place policies and procedures[.]

Id. at 1022. The Court found these allegations did not arise out of "discretionary decisions involving the permissible exercise of policy judgment and consideration of public policy." Id. Importantly, the Court did not inquire into and did not give any determination regarding the causes, root or otherwise, of the dike failure. Moreover, the Court did not find any cause or causes of the dike failure to be "undisputed."*fn9

In the Crichton opinion, the Court considered the plaintiff's argument that there was no genuine issue of material fact that TVA's improper maintenance caused the dike failure and harmed the plaintiff. Crichton, 2010 WL 2484193, at *3, *8. The Crichton plaintiff, who filed his motion for summary judgment prior to the Court's issuance of the Mays opinion, based his arguments almost entirely on a report by TVA's Office of Inspector General (the "OIG"), titled, the Review of the Kingston Fossil Plant Ash Spill Root Cause Study and Observations About Ash Management (the "OIG report") [Turner, Doc. 46-2]. After thoroughly considering the Crichton plaintiff's allegations and the contents of the OIG report, the Court found that "[w]hether TVA was negligent . . . will necessarily be a fact intensive inquiry and will require more detailed factual allegations and evidence than that stated and cited in plaintiff's brief." Crichton, 2010 WL 2484193, at *8. The Court found the OIG report relevant to the plaintiff's claims and allegations but not determinative of liability because there remained genuine issues of material fact.

Plaintiffs in Turner, Armes, and Mays assert that the Court has previously ruled on the substance of TVA's present summary judgment requests. These plaintiffs assert that the Mays opinion addressed TVA's present requests "to the extent Plaintiffs' tort claims pertain to TVA's use, maintenance and upkeep of the Swan Pond facilities." [Armes, Doc. 35 (citing Mays, 699 F. Supp. 2d at 1020)]. The Court disagrees.

In the Mays opinion, the Court concluded that some conduct by TVA was shielded by the discretionary function doctrine and some was not. See Mays, 699 F. Supp. 2d at 1022. Because the record of the cases at the time of the Mays opinion contained genuine issues of material fact as to what type of alleged conduct by TVA was non-discretionary and what type of non-discretionary conduct allegedly caused the dike failure and spill, the Court granted in part and denied in part TVA's requests for summary judgment. A similar situation occurred in the context of the Crichton case. Furthermore, the Crichton plaintiff never supplemented his motion or incorporated the Court's findings and conclusions in the Mays opinion into his argument for summary judgment. The Court, therefore, had before it no arguments or evidence from the Crichton plaintiff incorporating the findings or holding of the Mays opinion.*fn10 Consequently, the effect of the Crichton opinion on TVA's present summary judgment requests is minimal.

Given the foregoing, the Court disagrees with plaintiffs that the Non-discretionary Conduct Motions and the summary judgment requests contained therein are inappropriate in light of the Court's prior rulings.

C. The Coal Ash Spill Reports

In January 2009, TVA commissioned AECOM Technology Corporation, an engineering consultant firm, to study the physical root causes of the December 22, 2008 dike failure and ash spill and to produce a report on its findings [Turner, Doc. 46-3]. The Executive Summary for the Root Cause Analysis of Kingston Dredge Cell Failure (the "AECOM report"), released on June 2009, was the result of that study [Id.]. AECOM also contacted with Dr. Gonzalo Castro, P.E., an engineering consultant, to perform an independent peer review of AECOM's work [Id.]. The AECOM report concludes that four concurrent factors were the most probable root causes for the failure of the containment dike:

(1) an increased load on the dike due to the higher elevation of the ash stack and the continued use of the facilities at the KIF plant for coal ash disposal; (2) the setback of the dredge cell dike from the outer containment dike which placed the dredged cell dike over a wet ash foundation; (3) an unusually weak silt/ash "slimes" layer at the bottom of the wet ash foundation; and (4) a lack of consolidation of ...


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