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Date Filed

Document Text

August 23, 2012

Filing 56 MEMORANDUM, OPINION AND ORDER: Based on the Court's findings of fact and conclusions of law as stated, the Court FINDS in favor of plaintiffs and against TVA because specific nondiscretionary conduct on the part of TVA caused t he failure of the coal ash containment dike at TVA's KIF plaint on 12/22/08 and that, but for the nondiscretionary conduct described, the dike failure would not have occurred. TVA will therefore be LIABLE for damages to each plaintiff, provided each plaintiff is able to demonstrate in the Phase II proceedings his or her entitlement to relief under claims of negligence, trespass, and/or private nuisance. For the reasons given, it is ORDERED that plaintiffs' claims of negligence per se, recklessness, strict liability, and public nuisance are DISMISSED from this litigation. The parties are DIRECTED, within 21 days of the entry of this memorandum opinion and order, to file briefs of no more than 20 pages regarding the parties' re commendations for how this Court should conduct Phase II proceedings. Per the parties' agreement and the orders of this Court, the findings of fact and conclusions of law contained in this memorandum opinion will be BINDING on all parties to the TVA Ash Spill Litigation. Appropriate judgment orders will be ENTERED in each case following the resolution of the Phase II proceedings. Signed by District Judge Thomas A Varlan on 8/23/12. (ABF)

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