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Time may be running out on ash spill lawsuits

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By The Staff

By DAMON LAWRENCE

dlawrence@roanecounty.com

Instead of being made “whole” by negotiating a settlement with TVA, some people who felt damaged by the agency because of the fly ash catastrophe chose to seek their reparations through litigation.

Those who didn’t could be running out of time. The one-year anniversary of the Dec. 22, 2008, disaster is fast approaching.

“If you have any kind of injury, you’d probably want to file your suit before the year is up,” Harriman attorney Bill Newcomb said.

The statute of limitations to sue for personal injury in Tennessee is one year. For injuries to personal property it’s three years.  

Nashville attorney Elizabeth Alexander said the statute of limitations law can be complicated, so anyone worried that they won’t be able to sue for personal injury after the one-year anniversary should consult with a lawyer.  

“I think anyone who has some concerns needs to reach out to an attorney and get some legal advice,” she said.

Alexander’s firm — Lieff, Cabraser, Heimann & Bernstein, LLP — has litigation pending against TVA because of the disaster.

A dike failure at the agency’s Kingston Fossil Plant engulfed the surrounding area with 5.4 million cubic yards of fly ash.

No one was killed, but the disaster polluted the Emory River and damaged homes, property, roads and quality of life.

Lawyers say generally the way the statute of limitations law works for personal injury is potential plaintiffs have a year from the date of the event, or a year from the date injury was realized to file a lawsuit.

So in the case of the fly ash catastrophe, Newcomb said a person might still be able to sue after the one-year anniversary.

“It’s possible a person could have gotten injured and not yet know it,” Newcomb said. “They might still be able to file a suit depending on why they didn’t discover they were injured. There’s various reasons why a person might not discover something.”

According to the U.S. Environmental Protection Agency, the ash contains constituents such as arsenic, cadmium, chromium, copper, lead, mercury, nickel, selenium and zinc, which are hazardous substances.

“If you are slowly exposed to these metals that we know have negative impacts on human health, it could be many years before you see any of the results from the negative impacts from that exposure,” said Lisa Widawsky, an attorney with the Environmental Integrity Project.   

TVA contends the ash does not pose a serious health threat, but some residents, researchers and environmental groups dispute those claims.

TVA is seeking immunity from lawsuits under the premise that it’s a federal agency.

Oak Ridge lawyer Mike Ritter, one of many attorneys who represent clients suing TVA because of the disaster, said the lawsuits are stalled until a judge makes a ruling on the immunity claim.

“We can’t go anywhere until the judge comes down and either says, ‘Well you’re right, or you’re wrong,’” he said. “If he says, ‘TVA you’re right,’ then we appeal.”

TVA said it’s seeking immunity to protect the ratepayers. Ritter called it a delay tactic.

“When you have a big organization like that, it’s just a way for them to try and out-paper someone,” he said.