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The People vs. TVA: Kilgore, Rose and Kirkham on witness list

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By Damon Lawrence

Both sides in the litigation over the TVA ash spill expect to call Bonnie Bashor as a witness during the civil trial expected to start Thursday in U.S. District Court.

Bashor is director of the state’s Environmental Epidemiology Program that conducted a public health assessment on the spill.

Plaintiffs have argued the disaster caused personal injury, but the health assessment found the spill should not have caused harm to the community’s health.

A federal judge cited the finding in his decision to dismiss claims against TVA for personal injury and emotional distress.

“We feel confident that we have investigated as thoroughly as possible and stand by our conclusions,” Bashor was quoted last year.

The health assessment had been criticized because the state allowed TVA to review the report before it was made public.

“It was reviewed by government agencies and TVA to make sure the data used was accurate,” Tennessee Department of Health spokeswoman Andrea Turner said.

“That is normal policy,” Bashor said last year. “If you use some agency’s data, to give them a first chance to make sure you use their correct data.”

The Dec. 22, 2008, spill at TVA’s Kingston Fossil Plant released more than 5 million cubic yards of ash into the environment.

TVA was hit with dozens of lawsuits following the disaster.  

The civil trial, in which a number of Roane Countians are suing TVA, will be at the federal courthouse in Knoxville.

According to a proposed pretrial order, it will be divided into two phases. The first phase, the order said, will involve issues and evidence relating to duty, breach and dike failure.

“Did actionable nondiscretionary conduct by TVA breach a legal duty and factually and legally cause the dike failure?,” the order said. “If the court rules in favor of TVA on issue 1, final judgment should be entered in favor of TVA.”

If the court rules in favor of the plaintiffs, the order said a second phase of the trial will be necessary to determine two things.

“Which tracts of real property, if any, owned by plaintiffs sustained legally cognizable property injuries factually and legally caused by the dike failure?,” and, “For each such injured tract, if any, what amount of damages is the plaintiff-owner entitled to recover?”

The plaintiffs are expected to call top TVA executives to testify, including President/CEO Tom Kilgore, Senior Vice President of Diversity and Labor Relations Peyton T. Hairston Jr., and Senior Vice President of Environment and Technology Anda Ray.

The plaintiffs also expect to call TVA Inspector General Richard Moore.

His office issued a scathing 2009 report that accused TVA of being more focused on minimizing its legal liability than getting to the bottom of what caused the spill.

The report also said, “TVA could have possibly prevented the spill if it had taken recommended corrective actions.”

Roane County Office of Emergency Services Director Howie Rose and Property Assessor Teresa Kirkham are also on the plaintiffs’ witness list.

One of the biggest complaints about the ash spill was it drove down property values. However, the 2010 reappraisal conducted by Kirkham’s office concluded property values went up in Roane County.

The plaintiffs could also enter thousands of exhibits into evidence during the trial.

The exhibits have descriptions, such as “Spreadsheet - Roane County Long Range Recovery Community Request as of 6/17/2009; Presentation, Life on Swan Pond, Before and After Dec. 22, 2008; photos of worker stuck in mud above his knees; Email re: culture at TVA; Timeline - Kingston Fossil Plant events before spill.”