Larry Mays v. Tenn. Valley Auth.

• Decision Date: 26 March 2010
• Docket Number: Nos. 3:09-CV-6, 3:09-CV-9, 3:09-CV-14, 3:09-CV-48, 3:09-CV-54, 3:09-CV-64, 3:09-CV-114.,s. 3:09-CV-6, 3:09-CV-9, 3:09-CV-14, 3:09-CV-48, 3:09-CV-54, 3:09-CV-64, 3:09-CV-114.
• Citation: 699 F.Supp.2d 991
• Parties: Larry MAYS, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant. Mary Margaret Blanchard, et al., Plaintiffs, v. Tennessee Valley Authority, Defendant. Robert O. Giltnane, et al., Plaintiffs, v. Tennessee Valley Authority, Defendant. Jot Raymond, et al., Plaintiffs, v. Tennessee Valley Authority, Defendant. Anita Auchard, et al., Plaintiffs, v. Tennessee Valley Authority, Defendant. Lee Scofield, et al., Plaintiffs, v. Tennessee Valley Authority, Defendant. Vicki Long, et al., Plaintiffs, v. Tennessee Valley Authority, et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

699 F.Supp.2d 991

Larry MAYS, Plaintiff,

v.TENNESSEE VALLEY AUTHORITY, Defendant.

Mary Margaret Blanchard, et al., Plaintiffs,

v.Tennessee Valley Authority, Defendant.

Robert O. Giltnane, et al., Plaintiffs,

v.Tennessee Valley Authority, Defendant.

Jot Raymond, et al., Plaintiffs,

v.Tennessee Valley Authority, Defendant.

Anita Auchard, et al., Plaintiffs,

v.Tennessee Valley Authority, Defendant.

Lee Scofield, et al., Plaintiffs,

v.Tennessee Valley Authority, Defendant.

Vicki Long, et al., Plaintiffs,

v.Tennessee Valley Authority, et al., Defendants.

Nos. 3:09-CV-6, 3:09-CV-9, 3:09-CV-14, 3:09-CV-48, 3:09-CV-54, 3:09-CV-64, 3:09-CV-114.

United States District Court,E.D. Tennessee,Northern Division.

March 26, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Bruce D. Fox, Laura B. Myers, Fox & Farley, Clinton, TN, Gordon Ball, Ball & Scott Law Offices, Knoxville, TN, James J. Pizzirusso, Michael D. Hausfeld, Richard S. Lewis, Hausfeld, LLP, Washington, DC, Thomas S. Scott, Jr., Ball & Scott, Knoxville, TN, Gerald F. Easter, Memphis, TN, for Plaintiff.

Edwin W. Small, Elizabeth A. Ward, Brent R. Marquand, David D. Ayliffe, James S. Chase, Peter K. Shea, Tennessee Valley Authority Office of General Counsel, Knoxville, TN, Amor A. Esteban, Shook, Hardy & Bacon, LLP, San Francisco, CA, David R. Erickson, John K. Sherk, Mark Anstoetter, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS A. VARLAN, District Judge.

These civil actions are before the Court on Defendant TVA's Motion to Dismiss or for Summary Judgment (the “Motion to Dismiss or for Summary Judgment”) [Doc. 41] ¹ and the Motions to Dismiss All Claims for Punitive Damages Against TVA and to Strike All Jury Demands Against TVA (the “Motion to Dismiss Punitive Damages and Strike Jury Demand”) [Doc. 58], filed by defendant Tennessee Valley Authority (“TVA”). This litigation consists of the seven captioned cases listed above-four separately filed class action complaints and three non-class action complaints-all filed against TVA and all relating to the December 22, 2008 dike failure and coal ash spill at the Swan Pond facilities at TVA's Kingston Fossil plant in Roane County, Tennessee (the “Swan Pond facilities”).

In the Motion to Dismiss or for Summary Judgment [Doc. 41], TVA moves the Court, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all tort claims filed against it by Plaintiffs ² in the seven captioned cases for lack of justificiability on grounds of the federal discretionary function doctrine and failure to state a claim for which relief can be granted. Alternatively, and pursuant to Federal Rule of Civil Procedure 56, TVA moves the Court for summary judgment on all Plaintiffs' tort claims. TVA has also moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), the inverse condemnation claims filed against it by the Blanchard plaintiffs, the Raymond plaintiffs, and the Scofield plaintiffs.

In the Motion to Dismiss Punitive Damages and Strike Jury Demand [Doc. 58], TVA moves the Court to dismiss all claims for punitive damages asserted by Plaintiffs on grounds that, pursuant to Federal Rule of Civil Procedure 12(b)(6), punitive damages may not be recovered against TVA because Congress has not expressly authorized such damages against TVA. TVA also moves the Court, pursuant to Federal Rule of Civil Procedure 12(f), to strike Plaintiffs' demands for a jury because there is no right to a jury trial against TVA in these cases. ³

I. BACKGROUND AND FACTS

TVA is a corporate agency and instrumentality of the United States created by and existing pursuant to the Tennessee Valley Authority Act of 1933 (the “TVA Act”). See 16 U.S.C. §§ 831 et seq. ; see also Hill v. United States Dep't of Labor, 65 F.3d 1331, 1333 (6th Cir.1995). TVA was created by Congress “in the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins.” 16 U.S.C. § 831. Through amendments to the TVA Act, Congress extended TVA's purposes to “law enforcement ... in the area of jurisdiction,” Id. § 831c-3(a), and “[t]o aid further the proper use, conservation, and development of the natural resources of the Tennessee River drainage basin and of such adjoining territory as may be related to or materially affected by the development consequent to this chapter, and to provide for the general welfare of the citizens of said areas....” Id. § 831u; see also United States ex rel. TVA v. Welch, 327 U.S. 546, 553-54, 66 S.Ct. 715, 90 L.Ed. 843 (1946). The TVA Act also specifically authorizes TVA “[t]o produce, distribute, and sell electric power.” 16 U.S.C. § 831d( l ); see also Memphis Power & Light Co. v. City of Memphis, 172 Tenn. 346, 112 S.W.2d 817, 822 (1937) (stating that “[t]he TVA is a public instrumentality and holds the electric energy generated at its dams in trust for the people of the whole country”). In addition, the TVA Act gives TVA the power to exercise the right of eminent domain, to acquire real estate, and to take title to real estate in the name of the United States to accomplish the purposes of the TVA Act, including “the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects....” 16 U.S.C. §§ 831c(h)-(i).

In 1939, pursuant to the TVA Act, Congress authorized construction of the Watts Bar Project, a project which included the Watts Bar Dam, lock, hydroelectric plant, and the Watts Bar Reservoir [Doc. 44-1, pp. 94-95]. ⁴ Congressional appropriations for the Watts Bar Project included funds for the purchase of approximately 49,500 acres of land for the Watts Bar Reservoir [ Id., p. 98]. TVA's purchase of the Watts Bar Reservoir included the land underlying what is known locally as the Swan Pond embayment and its shoreline strip [ Id., p. 99]. In 1951, Congress appropriated funds for the construction of the Kingston Fossil Plant (the “KIF plant”), a coal-fired electricity generation plant [Doc. 44-1, pp. 101-02]. ⁵ That same year, TVA acquired, in the name of the United States, a peninsula at the confluence of the Clinch and Emory River embayments of the Watts Bar Reservoir [ Id.]. Construction of the KIF plant began on that peninsula in 1951 [ Id.]. The KIF plant produced coal ash, a byproduct of when coal is burned for electricity generation [ Id.]. TVA selected Swan Pond, located immediately north of the peninsula, as the disposal site for the coal ash byproduct [ Id., p. 102].

Swan Pond consists of a main ash pond, a dredged ash disposal area, and a stilling pool [Doc. 44-1, p. 164]. ⁶ Coal ash produced at the KIF plant is transported to the main ash pond as slurry ⁷ through two sluice channels, one for coarser bottom ash and one for finer fly ash [ Id.]. When the slurry flows through the sluice channels, the coarser bottom ash settles to the bottom [ Id.]. This coarse bottom ash is then removed from the sluice channels through mechanical means, such as drag lines, and used for dike construction [ Id.]. The finer fly ash flows through the sluice channels and into the main ash pond where it is dredged, normally by hydraulic means, and deposited in the ash disposal area, which is further divided into dredge cells by internal dikes [ Id.]. Excess water in the dredged ash disposal area drains back to the main ash pond and then to the stilling pool [ Id.]. The excess water then flows through the discharge channel and into the KIF plant's water intake channel, and then into the Watts Bar Reservoir [ Id.]. Excess water seeps down through the finer fly ash in the dredge cells and into the groundwater, which transports it into the Watts Bar Reservoir [ Id.].

According to TVA, under its inspection program for coal ash disposal at the Swan Pond facilities, stability inspections at the Swan Pond facilities have been conducted since at least 1967 [Doc. 43, ¶ 2]. ⁸ TVA asserts that the reports generated by these stability inspections were reviewed and used by TVA management to evaluate the safety and effectiveness of the Swan Pond facilities and to determine whether the facilities were in compliance with applicable regulations [ Id.]. TVA also asserts that the Swan Pond facilities were covered by two permits issued by the Tennessee Department of Environment and Conservation (“TDEC”): a National Pollutant Discharge Elimination System permit (the “NPDES permit”), and a Class II Landfill Permit (the “Landfill Permit”) [Doc. 44-1, pp. 114, 105]. ⁹ In September 2006, TVA asserts that TDEC approved TVA's request for a major modification of the Landfill Permit, authorizing the continued deposit of coal ash at the Swan Pond facilities up to an elevation of 868 feet [ Id., pp. 140, 242]. Since 2000, according to TVA, engineers from TDEC have performed regular inspections of the Swan Pond facilities [ Id., p. 287].

Between 2003 and 2007, TVA asserts that it considered alternatives to the wet coal ash disposal system at the Swan Pond facilities [Doc. 42, ¶ 3] After considering the alternatives, TVA asserts that it made the decision to continue operating the Swan Pond facilities pursuant to a wet coal ash disposal system [ Id.]. In November 2003, a “blowout,” or seepage, occurred in a dike on one side of the dredged ash cells [ Id.; Doc. 44-2, p. 68]. Following the 2003 blowout, TVA asserts that it consulted with two engineering firms, Parsons Energy & Chemicals Group Inc. (“Parsons E & C”) and Geosyntec Consultants, Inc. (“Geosyntec”), to determine the cause of the blowout and to evaluate alternatives to permit the continued use of the Swan Pond facilities [Doc. 43, ¶ 3; Doc. 44-2, p. 68]. Parsons E & C concluded that the 2003 blowout was not due to “slope stability,” but to other factors [Doc. 44-1, p. 278]. TVA asserts that after considering the...