Chesney v. Tenn. Valley Auth.

• Decision Date: 22 March 2011
• Docket Number: No. 3:09–CV–09.,3:09–CV–09.
• Citation: 782 F.Supp.2d 570
• Parties: George CHESNEY, et al., Plaintiffs,v.TENNESSEE VALLEY AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

782 F.Supp.2d 570

George CHESNEY, et al., Plaintiffs,

v.TENNESSEE VALLEY AUTHORITY, et al., Defendants.

No. 3:09–CV–09.

United States District Court, E.D. Tennessee.

March 22, 2011.

Elizabeth A. Alexander, Kenneth S. Byrd, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, TN, Gary A. Davis, James S. Whitlock, Gary A. Davis & Associates, Hot Springs, NC, Paul D. Brandes, Villari, Brandes & Kline, P.C., Conshohocken, PA, A. Brantley Fry, David B. Byrne, Jere Locke Beasley, John E. Tomlinson, Rhon E. Jones, Beasley, Allen, Crow, Methvin, Portis & Miles, PC, Montgomery, AL, Mary A. Parker, Stephen C. Crofford, Nashville, TN, William Tom McFarland, Law Office of Tom McFarland, Kingston, TN, for Plaintiffs.Edwin W. Small, Elizabeth A. Ward, Brent R. Marquand, James S. Chase, Peter K. Shea, Tennessee Valley Authority Office of General Counsel, Knoxville, TN, Gary A. Davis, Gary A. Davis & Associates, Hot Springs, NC, Amor A. Esteban, Shook, Hardy & Bacon, LLP, San Francisco, CA, David D. Ayliffe, Tennessee Valley Authority, Knoxville, TN, David R. Erickson, John K. Sherk, Mark Anstoetter, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS A. VARLAN, District Judge.

This civil action is before the Court on the Joint Motion to Dismiss for Lack of Subject Matter Jurisdiction or Failure to State a Claim or, in the Alternative, for Summary Judgment [Doc. 203],¹ filed by defendants WorleyParsons Corporation (“WorleyParsons”) and Geosyntec Consultants, Inc. (“Geosyntec”) (also referred to collectively as “defendants”). In the motion, defendants move to dismiss the consolidated class action complaint for lack of subject matter jurisdiction or for failure to state a claim, pursuant to Rule 12(b)(1) or Rule 12(b)(6) of the Federal Rules of Civil Procedure. Alternatively, defendants move for summary judgment on grounds that there is no genuine issue as to any material fact and defendants are entitled to judgment as a matter of law, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiffs have responded in opposition [Doc. 225], and defendants have filed a reply [Doc. 240] to that response. For the reasons set forth herein, defendants' motion will be granted and WorleyParsons and Geosyntec will be dismissed from this case.

I. Relevant Facts and Procedural Background

This case arises out of the December 22, 2008 failure of a coal ash containment dike at the Tennessee Valley Authority's (“TVA's”) Kingston Fossil Plant (the “KIF plant”), located in Roane County, Tennessee. Plaintiffs are owners of residential property in the vicinity of the KIF plant [Doc. 185, ¶ 46]. TVA, a federal corporate agency and instrumentality created by Congress and existing pursuant to the Tennessee Valley Authority Act of 1933 (the “TVA Act”), 16 U.S.C. § 831, owns and operates the KIF plant [ Id., ¶ ¶ 59–61, 77]. WorleyParsons and Geosyntec are professional engineering contractors [ Id., ¶¶ 17, 63–70]. Both provided engineering consultant services and/or advice to TVA, WorleyParsons from about 2004 through 2005, and Geosyntec from about 2004 through 2007. [ Id.].²

The KIF plant is a coal-fired electricity generation plant located on a peninsula at the confluence of the Clinch and Emory River embayments of the Watts Bar Reservoir in Roane County, Tennessee. The KIF plant produced coal ash, a byproduct of when coal is burned for electricity generation. Swan Pond, consisting of a main ash pond, a dredged ash disposal area, and a stilling pool, is located immediately north of the peninsula and served as the disposal site for the coal ash byproduct produced at the KIF plant.³ Coal ash produced at the KIF plant was transported to the main ash pond as slurry through two sluice channels, one for coarser bottom ash and one for finer fly ash. When the slurry flowed through the sluice channels, the coarser bottom ash settled to the bottom. Sluice channels then removed the coarse bottom ash through mechanical means. The coarse bottom ash was then used for dike construction. The finer fly ash flowed through the sluice channels and into the main ash pond where it was dredged, normally by hydraulic means, and deposited into the ash disposal area, which was further divided into dredge cells by internal dikes. Excess water in the dredged ash disposal area drained back to the main ash pond and then to the stilling pool. The excess water flowed through the discharge channel, into the KIF plant's water intake channel, and into the Watts Bar Reservoir. Excess water also seeped down through the finer fly ash in the dredge cells and into the groundwater, which transported it into the Watts Bar Reservoir [Doc. 185, ¶¶ 16, 59, 72–110]. ⁴

In November 2003, a “blowout” occurred in a containment dike on one side of the dredged cell area [Doc. 185, ¶¶ 110–11, 117(b) ]. Following the blowout, TVA suspended dredging operations in the existing cells [ Id.]. In 2004, TVA retained WorleyParsons ⁵ to determine the cause of the November 2003 blowout and to evaluate alternatives for the continued disposal of coal ash [ Id., ¶ 117(a)-(b), (g); Auchard, Doc. 43, ¶ 3]. WorleyParsons also conducted an engineering stability analysis of the dredge cell area and the adjoining main coal ash pond for TVA [ Id., ¶ 112, 117(b); Auchard, Doc. 43, ¶ 4]. In June 2004, WorleyParsons reported the results of the stability analysis to TVA, including a recommendation to improve drainage in the ash ponds [ Long, Doc. 140–3, pp. 19–20]. TVA used WorleyParsons's work to support its June 2004 application to the Tennessee Department of Environment and Conservation (the “TDEC”) for a modification of TVA's Class II Landfill Permit (the “Landfill Permit”) for the KIF plant [ Auchard, Doc. 43, ¶¶ 4–5; Auchard, Doc. 44–1, pp. 114, 105]. The TDEC approved TVA's proposed modification of the Landfill Permit on September 12, 2006 [ Auchard, Doc. 44–1, pp. 140, 242]. In 2004, TVA retained Geosyntec to conduct a peer review of WorleyParsons' work, including the stability analysis and the associated recommendations [Doc. 185, ¶¶ 110–11, 117(b); Auchard, Doc. 43, ¶¶ 3–5; Auchard, Doc. 82–2, p. 11]. In a report to TVA, Geosyntec recommended an additional evaluation of bottom drainage alternatives for the KIF plant [ Long, Doc. 140–3, p. 20].

In 2004, TVA directed a project team consisting of TVA personnel, WorleyParsons, and Geosyntec [ Auchard, Doc. 44–2, pp. 68–69]. This team reviewed existing data, performed site investigation and parallel seepage calculations, and ran seepage calculation models [ Id.]. After the review, the team concluded that “the cause of the [November 2003] failure was piping and excessive seepage.” [ Id., p. 69]. To “fix” the problem, the team proposed installing an additional trench drainage system [ Id.]. After the “fix” was installed, TVA resumed normal dredging operations on November 10, 2005 [ Auchard, Doc. 43–1; Auchard, Doc. 82–2, p. 11]. WorleyParsons and Geosyntec assert that neither defendant performed the actual repair work [ see Auchard, Doc. 43–1].

In November 2006, another blowout occurred at the same location as the November 2003 blowout [Doc. 185, ¶ 117(b); Auchard, Doc. 43, ¶ 6]. Following this blowout, TVA ceased dredging into the cells until April 9, 2007 [Doc. 185, ¶ 117(b); Auchard, Doc. 43, ¶ 6]. TVA retained Geosyntec to investigate the November 2006 blowout, to determine its cause, and to develop alternatives addressing seepage and disposal of the coal ash [Doc. 185, ¶ 117(b); Auchard, Doc. 43, ¶ 6; Auchard, Doc. 44–2, pp. 74–75]. After evaluating the alternatives identified by Geosyntec, TVA implemented localized toe drain improvements with additional monitoring, maintenance, and surface water improvements [ Auchard, Doc. 43, ¶ 6; Auchard, Doc. 44–2, p. 76]. Normal dredging operations resumed in 2008 in accordance with the modified Landfill Permit [ Auchard, Doc. 43, ¶¶ 6, 7; Auchard, Doc. 44–2, p. 12].

On December 22, 2008, a coal ash containment dike at the KIF plant failed [Doc. 185, ¶¶ 5–6, 132–35]. As a result of the dike failure, approximately 5.4 million cubic yards of coal ash sludge spilled from the 84–acre containment area of the KIF plant to an adjacent area of about 300 acres, consisting of primarily the Watts Bar Reservoir, the Clinch and Emory Rivers, and government and privately owned shoreline properties [ Auchard, Doc. 44, pp. 4–5; Auchard, Doc. 82, p. 12].

Following the coal ash spill, seven cases were filed against TVA. In the complaints, the plaintiffs allege that they reside, own property, and/or own businesses within the area of the coal ash spill. See Mays v. TVA, 699 F.Supp.2d 991, 1000–04 (E.D.Tenn.2010). While not identical, the complaints contain similar tort-law causes of action against TVA. Mays, 699 F.Supp.2d at 1000–04. Several of the plaintiffs also assert inverse condemnation claims. Id. On April 17, 2009, TVA filed motions to dismiss or for summary judgment in those seven cases, asserting that the federal discretionary function doctrine applies to TVA and requires dismissal or summary judgment of all the plaintiffs' tort claims [Doc. 46]. Id. at 1003–04. On March 26, 2010, the Court issued an opinion granting in part and denying in part TVA's motions for summary judgment [Doc. 148]. Id. at 1033. The Court granted the motions to the extent the plaintiffs' allegations pertain to TVA's removal and remediation conduct and to TVA's discretionary conduct. Id. at 1033. The Court denied the motions to the extent the plaintiffs' allegations pertain to TVA's non-discretionary conduct. Id.

It is now more than two years since the coal ash spill. Since the filing of the initial seven cases, more than fifty separate cases have been filed against TVA relating to the spill. Plaintiffs in this case were initially the plaintiffs in three of the first seven cases filed against TVA: Blanchard, et al. v. TVA, Case No. 3:09–CV–09, Giltnane, et al. v. TVA, Case No....