IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA ARWOOD,
RONALD BEDENBAUGH,
TRACI BEDENBAUGH,
CLAUDE BLACK, KELLIE BLACK,
TONY BOWDOIN,
MARGARET DELONG, individually and as
parent and natural guardian of
CALEB PAUL DELONG,
ANGEL DELONG, individually and as parent
and natural guardian of
DIXIE LOU DELONG, JACOB BRYANT,
LOGAN MONTGOMERY,
HOUSTON KARL CASS,
CHARLENE RENEA CASS,
ROBERT EVAN CASS,
MARK DAVIDSON, individually and as
parent and natural guardian of
HUNTER DAVIDSON, AMY DAVIDSON,
ETHAN DAVIDSON,
TOM DENT, individually and as parent and
natural guardian of WESTON DENT,
REBECCA BRYANT,
BETH GRANT, MICHAEL GRANT,
LARRY HETRICK,
DOROTHY KRAKOW,
ROSA MIDDLEBROOKS,
JIM MIDDLEBROOKS, JR,
AYANNA MIDDLEBROOKS,
JIMELIA MIDDLEBROOKS,
MARY ANN MIDDLEBROOKS,
GINI SEITZ, individually and as parent and
natural guardian of KYLIE SEITZ,
HALIE SEITZ, CADI SEITZ,
LORAINE MICHELLE SHELLEY,
HENRY SLAUGHTER,
JAMES T. SMITH, KAREN C. SMITH,
WILSON SMITH, CHARLAYNE SMITH,
PHIL R. WELCH, DONNA WELCH,
MICHAEL WELCH, and
KATHY B. WELCH,
Plaintiffs,
vs.
GEORGIA POWER COMPANY,
Defendant.

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CIVIL ACTION FILE
NO. ________________

JURY TRIAL DEMANDED

 COMPLAINT
Plaintiffs are residents of Juliette and Forsyth, Georgia who rely on well water for their
basic living activities such as drinking, bathing, cleaning, and irrigation. Georgia Power
Company owns and operates the most powerful coal-fired power plant in North America, which
is located in Plaintiffs’ backyard. The plant is a known and extreme polluter. The plant’s
operations rely on a pond that stores over 15 million tons of toxic coal ash. The pond is unlined.
Thus, the coal ash leaches into the groundwater that flows straight to Plaintiffs’ wells. The coal
ash is poisoning the residents of Juliette and Forsyth, Georgia, including Plaintiffs. Plaintiffs
suffer from cancer, disorders of the cardiovascular, immune, renal and urinary, and respiratory
systems; neurological, thyroid, liver, skin and cell damage; and developmental disorders, in
addition to other personal injuries. The cancer rate in Monroe County (home to most of Juliette
and Forsyth, Georgia) is more than double the state and national averages. And Plaintiffs’
property values are devastated because of the contamination.
Plaintiffs hereby file this Complaint seeking damages against Defendant Georgia Power
Company for its wrongful acts that have caused Plaintiffs personal injury and/or property
damage, and if left unabated, will continue to cause them personal injury and/or property
damage, showing the Court as follows:
INTRODUCTION
1.

This action for damages arises out of Defendant Georgia Power Company’s prior

and continuing release, discharge, and deposit of toxins into the groundwater, surface water, and
air that has caused extreme personal and property damage to Plaintiffs.

-2-

 2.

Defendant Georgia Power Company (“Defendant” or “Georgia Power”) initially

disrupted the environment around its Robert W. Scherer Electric Generating Plant (“Plant
Scherer”) when it created a man-made lake (Lake Juliette) to enable the Plant’s operations.
3.

Georgia Power exacerbated and continued its pollution activities by unlawfully

discharging toxic heavy metals and radionuclides from coal ash into the air and into an unlined
pond located at Plant Scherer, which led to the release and migration of pollutants into the
groundwater and onto Plaintiffs’ properties and/or into their drinking water.
PARTIES
4.

Plaintiffs are current or former owners or residents of residential property located

in Juliette and Forsyth, Georgia, or otherwise in the vicinity of Plant Scherer.
5.

Plaintiff Patricia Arwood is, and was at all times relevant, a citizen of the state of

Georgia, residing at 851 Christian Road, Juliette, Georgia 31046.
6.

Plaintiff Ronald Bedenbaugh is, and was at all times relevant, a citizen of the state

of Georgia, residing at 275 Old Dames Ferry Road, Juliette, Georgia 31046.
7.

Plaintiff Traci Bedenbaugh is, and was at all times relevant, a citizen of the state

of Georgia, residing at 275 Old Dames Ferry Road, Juliette, Georgia 31046.
8.

Plaintiff Claude Black is, and was at all times relevant, a citizen of the state of

Georgia, residing at 10989 GA Hwy 87, Juliette, Georgia 31046.
9.

Plaintiff Kellie Black is, and was at all times relevant, a citizen of the state of

Georgia, residing at 10989 GA Hwy 87, Juliette, Georgia 31046.
10.

Plaintiff Tony Bowdoin is, and was at all times relevant, a citizen of the state of

Georgia, residing at 175 Bowdoin Road, Juliette, Georgia 31046.

-3-

 11.

Plaintiff Margaret DeLong is, and was at all times relevant, a citizen of the state

of Georgia, residing at 442 Edwards Road, Juliette, Georgia 31046.
12.

Plaintiff Angel DeLong is, and was at all times relevant, a citizen of the state of

Georgia, residing at 442 Edwards Road, Juliette, Georgia 31046.
13.

Plaintiff Dixie Lou DeLong is, and was at all times relevant, a citizen of the state

of Georgia, residing at 442 Edwards Road, Juliette, Georgia 31046.
14.

Plaintiff Caleb Paul DeLong is, and was at all times relevant, a citizen of the state

of Georgia, residing at 442 Edwards Road, Juliette, Georgia 31046.
15.

Plaintiff Jacob Bryant is, and was at all times relevant, a citizen of the state of

Georgia, residing at 442 Edwards Road, Juliette, Georgia 31046.
16.

Plaintiff Logan Montgomery is, and was at all times relevant, a citizen of the state

of Georgia, residing at 442 Edwards Road, Juliette, Georgia 31046.
17.

Plaintiff Houston Karl Cass is, and was at all times relevant, a citizen of the state

of Georgia, residing at 121 Pine Lane Trail, Juliette, Georgia 31046 and 76 Woodland Way,
Juliette, Georgia 31046.
18.

Plaintiff Charlene Renea Cass is, and was at all times relevant, a citizen of the

state of Georgia, residing at 121 Pine Lane Trail, Juliette, Georgia 31046 and 76 Woodland Way,
Juliette, Georgia 31046.
19.

Plaintiff Robert Evan Cass is, and was at all times relevant, a citizen of the state

of Georgia, residing at 121 Pine Lane Trail, Juliette, Georgia 31046.
20.

Plaintiff Mark Davidson is, and was at all times relevant, a citizen of the state of

Georgia, residing at 433 Edwards Road, Juliette, Georgia 31046, 436 Searcy Drive, Juliette,
Georgia 31046, and 523 Edwards Road, Juliette, Georgia 31046.

-4-

 21.

Plaintiff Amy Davidson is, and was at all times relevant, a citizen of the state of

Georgia, residing at 433 Edwards Road, Juliette, Georgia 31046 and 523 Edwards Road, Juliette,
Georgia 31046.
22.

Plaintiff Hunter Davidson is, and was at all times relevant, a citizen of the state of

Georgia, residing at 433 Edwards Road, Juliette, Georgia 31046.
23.

Plaintiff Ethan Davidson is, and was at all times relevant, a citizen of the state of

Georgia, residing at 433 Edwards Road, Juliette, Georgia 31046.
24.

Plaintiff Tom Dent is, and was at all times relevant, a citizen of the state of

Georgia, residing at 24 Camellia Plant Drive, Juliette, Georgia 31046.
25.

Plaintiff Rebecca Bryant is, and was at all times relevant, a citizen of the state of

Georgia, residing at 24 Camellia Plant Drive, Juliette, Georgia 31046.
26.

Plaintiff Weston Dent is, and was at all times relevant, a citizen of the state of

Georgia, residing at 24 Camellia Plant Drive, Juliette, Georgia 31046.
27.

Plaintiff Beth Grant is, and was at all times relevant, a citizen of the state of

Georgia, residing at 2680 Dames Ferry Road, Forsyth, Georgia 31029 and 2019 Dames Ferry
Road, Forsyth, Georgia 31029.
28.

Plaintiff Michael Grant is, and was at all times relevant, a citizen of the state of

Georgia, residing at 2680 Dames Ferry Road, Forsyth, Georgia 31029.
29.

Plaintiff Larry Hetrick is, and was at all times relevant, a citizen of the state of

Georgia, residing at 9711 GA Hwy-87, Juliette, Georgia 31046.
30.

Plaintiff Dorothy Krakow is, and was at all times relevant, a citizen of the state of

Georgia, residing at 280 Turkey Run Road, Juliette, Georgia 31046.

-5-

 31.

Plaintiff Jim Middlebrooks, Jr. is, and was at all times relevant, a citizen of the

state of Georgia, residing at 117 Middlebrooks Drive, Juliette, Georgia 31046.
32.

Plaintiff Ayanna Middlebrooks is, and was at all times relevant, a citizen of the

state of Georgia, residing at 117 Middlebrooks Drive, Juliette, Georgia 31046.
33.

Plaintiff Jimelia Middlebrooks is, and was at all times relevant, a citizen of the

state of Georgia, residing at 117 Middlebrooks Drive, Juliette, Georgia 31046.
34.

Plaintiff Rosa Middlebrooks is, and was at all times relevant, a citizen of the state

of Georgia, residing at 117 Middlebrooks Drive, Juliette, Georgia 31046.
35.

Plaintiff Mary Ann Middlebrooks is, and was at all times relevant, a citizen of the

state of Georgia, residing at 104 Middlebrooks Drive, Juliette, Georgia 31046.
36.

Plaintiff Gini Seitz is, and was at all times relevant, a citizen of the state of

Georgia, residing at 76 Woodland Way, Juliette, Georgia 31046 and 13 Woodland Way, Juliette,
Georgia 31046.
37.

Plaintiff Cadi Seitz is, and was at all times relevant, a citizen of the state of

Georgia, residing at 76 Woodland Way, Juliette, Georgia 31046 and 13 Woodland Way, Juliette,
Georgia 31046.
38.

Plaintiff Halie Seitz is, and was at all times relevant, a citizen of the state of

Georgia, residing at 76 Woodland Way, Juliette, Georgia 31046, 13 Woodland Way, Juliette,
Georgia 31046, and 5892 Dames Ferry Road, Juliette, Georgia 31046.
39.

Plaintiff Kylie Seitz is, and was at all times relevant, a citizen of the state of

Georgia, residing at 76 Woodland Way, Juliette, Georgia 31046 and 13 Woodland Way, Juliette,
Georgia 31046.

-6-

 40.

Plaintiff Loraine Michelle Shelley is, and was at all times relevant, a citizen of the

state of Georgia, residing at 131 Camellia Drive, Forsyth, Georgia 31029.
41.

Plaintiff Henry Slaughter is, and was at all times relevant, a citizen of the state of

Georgia, residing at 10551 Hwy 87, Juliette, Georgia 31046.
42.

Plaintiff James T. Smith is, and was at all times relevant, a citizen of the state of

Georgia, residing at 2389 Juliette Road, Forsyth, Georgia 31029.
43.

Plaintiff Karen C. Smith is, and was at all times relevant, a citizen of the state of

Georgia, residing at 2389 Juliette Road, Forsyth, Georgia 31029 and Hwy 87, Juliette, Georgia
31046.
44.

Plaintiff Wilson Smith is, and was at all times relevant, a citizen of the state of

Georgia, residing at 3088 Dames Ferry Road, Forsyth, Georgia 31029.
45.

Plaintiff Charlayne Smith is, and was at all times relevant, a citizen of the state of

Georgia, residing at 3088 Dames Ferry Road, Forsyth, Georgia 31029.
46.

Plaintiff Phil R. Welch is, and was at all times relevant, a citizen of the state of

Georgia, residing at 6090 Dames Ferry Road, Juliette, Georgia 31046.
47.

Plaintiff Donna Welch is, and was at all times relevant, a citizen of the state of

Georgia, residing at 6090 Dames Ferry Road, Juliette, Georgia 31046.
48.

Plaintiff Michael Welch is, and was at all times relevant, a citizen of the state of

Georgia, residing at 6208 Dames Ferry Road, Juliette, Georgia 31046.
49.

Plaintiff Kathy B. Welch is, and was at all times relevant, a citizen of the state of

Georgia, residing at 6208 Dames Ferry Road, Juliette, Georgia 31046.

-7-

 50.

Defendant Georgia Power Company is a corporation formed under the laws of the

State of Georgia, and whose principal office address is 241 Ralph McGill Boulevard NE,
Atlanta, Fulton County, Georgia 30308.
51.

Georgia Power has owned and operated Plant Scherer during all times relevant to

the matters described and claims asserted in this Complaint.
JURISDICTION AND VENUE
52.

This Court has subject matter jurisdiction of this action and has personal

jurisdiction over Defendant in this action.
53.

Venue is proper in this Court.

54.

Georgia Power may be properly served pursuant to O.C.G.A. § 9-11-4 by

delivering a copy of this Complaint to its principal office located at 241 Ralph McGill Boulevard
NE, Atlanta, Georgia 30308.
FACTUAL BACKGROUND
Plant Scherer
55.

Georgia Power owns and operates Plant Scherer, a 12,000-acre coal-fired power

plant located in Juliette, Georgia.
56.

Georgia Power built Lake Juliette in 1980 to provide a dependable reservoir of

water for Plant Scherer’s operations.
57.

Plant Scherer is named after Robert W. Scherer, a former chairman and chief

executive officer of Georgia Power.
58.

Plant Scherer consists of four units, each with a rated capacity of 945 megawatts.

59.

The first unit was brought online in 1982. The other units were brought online in

1984, 1987, and 1989, respectively.

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 60.

Plant Scherer is the most powerful coal-fired power plant in North America. It is

the fourth-largest electric generating plant in the United States, and the largest to be fueled
exclusively by coal, according to the U.S. Energy Information Administration.
61.

According to the U.S. Environmental Protection Agency, Plant Scherer is the top

single emitter of Greenhouse Gas emissions among all United States power plants, averaging
over 20 million tons per year through at least 2018.
62.

Plant Scherer burns coal for the purpose of generating energy. Lake Juliette

provides water to make steam, which generates the electricity. Coal is burned to heat the water
into steam.
63.

According to the Global Energy Monitor, Georgia Power purchases coal for use at

Plant Scherer from the Powder River Basin in Wyoming.
64.

Coal from the Powder River Basin contains elements that include toxic heavy

metals and radionuclides. It is known in the industry as the cheapest and dirtiest coal available.
Coal ash
65.

Georgia Power generates large quantities of coal ash when it burns coal to

generate energy at Plant Scherer.
66.

Coal ash, also referred to as coal combustion residuals or CCRs, is produced

primarily from the burning of coal in coal-fired power plants. Coal ash includes a number of byproducts produced from burning coal, including fly ash, bottom ash, boiler slag, and flue gas
desulfurization material. This Complaint uses the term “coal ash” to refer to all the material
mentioned in this paragraph.
67.

Coal ash contains materials that are known carcinogens and neurotoxins,

including, but not limited to, arsenic, barium, boron, cadmium, chromium VI (hexavalent

-9-

 chromium), copper, gross alpha and beta emissions, lead, lithium, manganese, mercury,
molybdenum, nickel, radium, radon, selenium, thallium, and uranium.
68.

The risks to humans associated with exposure to these toxins from coal ash

include elevated probabilities of cancer, neurological and psychiatric effects, cardiovascular
effects, immune system damage, liver damage, kidney damage, decreased thyroid function, birth
defects, developmental disabilities, respiratory system effects, damage to blood vessels, anemia,
skin disorders, bone sarcomas, carcinomas of the paranasal sinuses and mastoid process, and
other acute and chronic toxic reactions.
Coal Ash Pond
69.

Georgia Power disposes of Plant Scherer’s coal ash in, among other places, a 776-

acre pond located on the campus of Plant Scherer (“Coal Ash Pond”).
70.

The Coal Ash Pond is unlined and contains roughly 15.7 million tons of coal ash,

much of which is located beneath the groundwater table, which is the area from which
groundwater flows.
71.

The Coal Ash Pond is located in close proximity to the Plaintiffs’ current or

former residences.
72.

Coal ash left in unlined basins, such as the Coal Ash Pond at Plant Scherer, is

likely to leach toxic metals and radionuclides into the groundwater.
73.

Coal ash has and continues to leach from the Coal Ash Pond.

74.

This leaching occurs via groundwater infiltrating the unlined basin of the Coal

Ash Pond. The groundwater flow carries the toxins from the coal ash to the surface water,
groundwater, and air on the properties where Plaintiffs live and have lived.

- 10 -

 The location of Georgia Power’s monitoring wells evades representative results
75.

Georgia Power has set up various monitoring wells supposedly to monitor water

conditions as a result of the operation of Plant Scherer, including the use of the Coal Ash Pond.
But the locations of these wells and the depth of the well screens are insufficient to properly
monitor contaminants leaching from the unlined Coal Ash Pond to the groundwater.
76.

The monitoring wells are located horizontally adjacent to the Coal Ash Pond, but

groundwater flow is vertical from the Coal Ash Pond to the bedrock aquifer, which is the
underground rock through which groundwater travels to reach streams, lakes, rivers, and
Plaintiffs’ wells.
77.

The monitoring well screens, which are filters that allow water to enter the pipes,

are placed above the bedrock aquifer. Thus, they are not within the flow from the Coal Ash
Pond.
78.

Well screens would need to be located below 380 feet mean sea level (MSL) to

properly detect groundwater contaminant plumes generated by toxic metals and radionuclides
leaching from the Coal Ash Pond. All of Georgia Power’s well screens are above the minimum
elevation of 380 MSL.
Undisturbed naturally occurring environmental constituents
in Monroe County would not be toxic
79.

In 1977, prior to the establishment of Plant Scherer and Lake Juliette, the U.S.

Geological Survey conducted background monitoring of 42 wells in Monroe County, Georgia.
80.

The results of that monitoring indicated that uranium concentrations in all 42

wells, with the exception of one, were all well below the U.S. Environmental Protection
Agency’s maximum contaminant level (MCL) of 30 ppb (parts per billion), and the vast majority

- 11 -

 of the wells showed levels below the minimum detection limit of 0.1 ppb. The sole exception
was a well in the southern part of the county that tested at 62.3 ppb.
81.

The source for these low levels of uranium is a naturally occurring mylonite

geologic deposit.
82.

Georgia Power should have known that naturally occurring uranium is associated

with the mylonite deposit, and that the uranium would become more soluble and mobile if the
pH balance of the environment is disrupted.
83.

Georgia Power’s construction of Lake Juliette disrupted the pH balance in the

environment.
84.

The establishment of Lake Juliette increased the local pH in the groundwater from

slightly acidic conditions in 1977 (pH ranging from 6-6.8) to the current basic conditions (pH of
7.4).
85.

The increased pH level has increased the solubility of the naturally occurring

uranium from the mylonite deposit.
86.

The uranium concentrations have significantly increased from the levels measured

in 1977. Between 2010-2019, the University of Georgia tested 40 wells in locations similar to
those tested in 1977 and found that the uranium concentrations ranged from 30.1 ppb to 6,297
ppb. All 40 wells tested orders of magnitude above the U.S. Environmental Protection Agency’s
maximum contaminant level of 30 ppb.
Contamination of Plaintiffs’ water and air
87.

Since the inception of Plant Scherer and the Coal Ash Pond, and continuing

today, Georgia Power has owned and operated Plant Scherer in such a negligent, reckless, and

- 12 -

 otherwise unlawful manner so as to allow, through their acts and omissions, the discharge,
release, seepage, deposit, and emission of toxins into Plaintiffs’ well water and surface water.
88.

Georgia Power has and continues to unlawfully release, discharge, and deposit

toxins from the Coal Ash Pond at Plant Scherer into the local well water used by Plaintiffs and/or
onto Plaintiffs’ properties.
89.

Georgia Power’s operation of Plant Scherer creates harmful air emissions of

uranium, radionuclides, chromium, cadmium, vanadium, cobalt, strontium, boron, and nickel,
which impacts residents in Juliette and Forsyth, Georgia through inhalation and contamination
by shallow soil deposits during rain events.
90.

Toxins from Plant Scherer are present in the Plaintiffs’ well water above the U.S.

Environmental Protection Agency’s maximum contaminant levels and tap water screening
levels, including, but not limited to lithium, uranium, chromium VI (hexavalent chromium),
gross alpha radiation, gross beta particle activity, radium-226, radium-228, and radon-222.
91.

The detected toxins in the well water and groundwater are the result of

contamination from Georgia Power operations at Plant Scherer and Lake Juliette. The
contaminants are not from naturally occurring constituents in the soils, bedrock, surface streams,
and groundwater in Monroe County, with the exception of uranium, which until Georgia Power
disturbed the environment and changed the pH level, occurred in levels well below the U.S.
Environmental Protection Agency’s maximum contaminant level for health standards in
groundwater.
92.

Plaintiffs obtain their drinking water from the groundwater wells where unsafe

levels of contaminants are found. Plaintiffs also use water from these wells to cook, clean, water
their gardens and lawns, and in other household activities.

- 13 -

 93.

Plaintiffs have been exposed, and continue to be exposed, to the toxins created by

Georgia Power’s operations at Plant Scherer and Lake Juliette.
94.

As long as Georgia Power maintains coal ash in its unlined Coal Ash Pond, the

coal ash and its associated toxins will continue to discharge into Plaintiffs’ groundwater and
surface waters and infect the air around Plant Scherer. These discharges will continue to place
the people who live, work, and recreate in close proximity to Plant Scherer at risk from
contamination.
95.

Georgia Power provided Plaintiffs no warning that activity from Plant Scherer

and the existence of the unlined Coal Ash Pond regularly exposed, and continue to expose,
Plaintiffs to toxic substances, which they inhale and ingest.
96.

In fact, Georgia Power has made affirmative statements that the operations at

Plant Scherer and its use of the Coal Ash Pond do not pose any danger to Plaintiffs or any
resident living near Plant Scherer.
97.

The release, discharge, and deposits of toxins into the environment and onto

Plaintiffs’ properties was foreseeable and preventable. Georgia Power knowingly released,
discharged, and deposited toxins into the environment and was aware that in so doing, it was
likely injuring local residents, such as Plaintiffs.
98.

The rate of cancer incidences and death in Monroe County is higher than

surrounding counties and is above state and national averages.
99.

For example, the national rate of cancer occurrence from 2011-2015 was 439.2

cases per 100,000 people (National Cancer Institute) and the state rate of cancer occurrence in
the same time period was 469.2 per 100,000 people (Georgia Department of Public Health).
Thus, with a population of roughly 26,000, Monroe County should have expected to see

- 14 -

 approximately 118 incidents of cancer during the same time periods. Yet from 2011-2015, the
rate of cancer incidence in Monroe County was more than double that number at 269 incidents
(Georgia Department of Public Health)—more than double both the state and national cancer
rates.
100.

The discharges, releases, and deposits caused by the acts and omissions of

Georgia Power have caused Plaintiffs, their well water, and their residences to be exposed to
highly toxic and hazardous coal ash and have caused damage to the natural resources and
environment in and around Plaintiffs’ residences, thereby causing Plaintiffs to incur health
injuries, pain and suffering, loss of quality of life, property damage, and other damages.
101.

As a result of Georgia Power’s releases, discharges, and deposits of toxic and

hazardous substances into the areas surrounding Plant Scherer, Plaintiffs have suffered injuries to
their person, property, or both.
102.

Plaintiffs have suffered cancer; disorders of the cardiovascular, immune, renal and

urinary, and respiratory systems; neurological, thyroid, liver, skin and cell damage; and
developmental disorders, in addition to other personal injuries.
103.

Georgia Power’s acts and omissions have caused discharges and releases that

exposed Plaintiffs to highly toxic and hazardous coal ash, which put them at greater risk for
cancer and other negative health effects such that they will need to more closely monitor their
health on a going forward basis.
COUNT I – NEGLIGENCE
104.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.

- 15 -

 105.

O.C.G.A. § 44-8-1 places an affirmative duty on landowners concerning running

water, such that a landowner may not “use or adulterate it as to interfere with the enjoyment of it
by the next owner.”
106.

Defendant was negligent as a landowner by adulterating groundwater through the

disposal of toxic and hazardous materials and other Plant Scherer operations so as to interfere
with the enjoyment of groundwater, surface water, and air by other owners, including Plaintiffs.
107.

Defendant was negligent in its construction of Lake Juliette.

108.

Defendant was and is negligent in the method by which it disposes of coal ash at

Plant Scherer.
109.

Defendant was negligent in the construction of the Coal Ash Pond by failing to

install a liner in spite of the significant known risk that left unlined, the Coal Ash Pond could
release, discharge, and deposit pollutants through groundwater running beneath or through Plant
Scherer to other landowners and residents such as Plaintiffs.
110.

Defendant was negligent in the use and maintenance of the Coal Ash Pond by

dumping millions of tons of coal ash there and causing the toxic concentration of leachate that
far exceeds safe levels.
111.

Defendant was and is negligent in the maintenance of the Coal Ash Pond by

allowing significant discharge of coal ash pollutants therefrom into the groundwater, surface
water, and air located in the vicinity of Plant Scherer.
112.

Defendant knew or should have known that its activities would have toxic,

poisonous, and highly deleterious effects upon the health of persons inhaling, ingesting, or
otherwise absorbing the waste generated at Plant Scherer.

- 16 -

 113.

Defendant breached its duty to Plaintiffs by disposing of toxic materials in the

unlined Coal Ash Pond and allowing toxic and hazardous material to contaminate the natural
resources of nearby residents, which Defendant knew, or should have known, would foreseeably
cause Plaintiffs to come into contact with, or otherwise be exposed to, the toxic substances.
114.

Defendant recklessly and negligently failed and/or refused to provide accurate and

adequate warnings of the health hazards and dangers of exposure to coal ash and other toxins to
Plaintiffs who would reasonably and foreseeably come into contact with or be harmed by the
toxic materials.
115.

Defendant recklessly and negligently failed to fully and properly test, analyze,

and study the constituents of the coal ash and other toxins so as to fully understand the health
hazards associated with disposing these materials in the unlined Coal Ash Pond.
116.

Defendant, as property owner and operator of Plant Scherer, has a duty to use its

land in a manner that does not injure other landowners.
117.

Defendant has breached this duty by failing to maintain the property at Plant

Scherer in a manner that would not result in ongoing damage to Plaintiffs’ properties and their
property rights.
118.

Defendant has breached this duty by failing to manage pollutant discharges and

other toxins in a manner that does not cause damage to Plaintiffs’ properties and their property
rights.
119.

Defendant’s failure to maintain its property and its actions and/or omissions in the

course of the operation, maintenance, development, and/or construction activities at Plant
Scherer has resulted in the severe adulteration and degradation of waters which flow onto

- 17 -

 Plaintiffs’ properties and into the watercourses located thereon and thereby interfere with
Plaintiffs’ traditional recreational, aesthetic, and residential uses of their properties.
120.

Defendant’s activities as alleged herein are a cause in fact and a proximate cause

of the damages which Plaintiffs have suffered.
121.

As a result of Defendant’s negligence, Plaintiffs have suffered personal and

property damages, including but not limited to damages to their health, invasions of their
properties, loss of the use and enjoyment of their properties, diminution of value of their
property, and restoration costs of returning their properties to their original states.
122.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including medical expenses. Plaintiffs’ personal injury damages are ongoing.
Accordingly, Plaintiffs’ total special damages are in an amount to be proven at trial.
123.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including diminution of value and the cost of restoration and repair of
Plaintiffs’ properties. The damage to Plaintiffs’ properties is ongoing. Accordingly, Plaintiffs’
total special damages are in an amount to be proven at trial.
124.

Plaintiffs are also entitled to be compensated for nominal damages and their

annoyance, inconvenience, and loss of use and enjoyment of their properties resulting from
Defendant’s actions as alleged herein in an amount to be determined by the enlightened
conscience of the jury.
COUNT II – NEGLIGENCE PER SE
125.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.

- 18 -

 126.

Defendant’s actions violated the Georgia Hazardous Waste Management Act,

O.C.G.A. § 12-8-60, et seq., and the regulations enacted pursuant to the foregoing.
127.

O.C.G.A. § 12-8-67 prohibits the movement of hazardous waste not in accordance

with rules and regulations. The statute provides, in part, that: “No hazardous waste shall be
transported . . . within . . . this state unless it is accompanied by a manifest properly issued,
completed, and filled out in accordance with the rules and regulations promulgated by the
board.”
128.

The aforementioned regulations and statutes are meant to protect against the type

of harm that Plaintiffs have suffered and continue to suffer as a result of Defendant’s failures to
adequately manage pollutant discharges of hazardous waste from Plant Scherer.
129.

Defendant’s failure to comply with applicable statutes and regulations constitutes

negligence per se.
130.

Defendant’s failures, actions, and/or omissions at Plant Scherer are a cause in fact

and a proximate cause of Plaintiffs’ damages.
131.

As a result of Defendant’s negligence per se, Plaintiffs have suffered both

personal and property damages.
132.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including medical expenses. Plaintiffs’ personal injury damages are ongoing.
Accordingly, Plaintiffs’ total special damages are in an amount to be proven at trial.
133.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including diminution of value and the cost of restoration and repair of
Plaintiffs’ properties. The damage to Plaintiffs’ properties is ongoing. Accordingly, Plaintiffs’
total special damages are in an amount to be proven at trial.

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 134.

Plaintiffs are also entitled to be compensated for nominal damages and their

annoyance, inconvenience, and loss of use and enjoyment of their properties resulting from
Defendant’s actions as alleged herein in an amount to be determined by the enlightened
conscience of the jury.
COUNT III – NEGLIGENT FAILURE TO WARN
135.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.
136.

At all times relevant to the matters described herein, Defendant has owned,

operated, and exercised exclusive control over the operations of Plant Scherer.
137.

Defendant’s operation of Plant Scherer includes the generation of large quantities

of coal ash, which contain toxic heavy metals and radionuclides that pose significant dangers and
risks to human health, including Plaintiffs’ health.
138.

Defendant knew or should have known that disposal of large quantities of coal

ash in the Coal Ash Pond, which remains unlined to date, would leach toxic heavy metals and
radionuclides into the groundwater where Plaintiffs obtain their drinking water from the private
groundwater wells on the properties where they reside.
139.

Given the likelihood of contamination arising from Defendant’s reckless and

negligent creation and operation of Plant Scherer and the Coal Ash Pond, Defendant had a duty
to investigate the extent of the discharge, release, seepage, deposit, and emission of pollutants
into Plaintiffs’ groundwater and warn Plaintiffs of such toxic exposures.
140.

At all times relevant, unsafe levels of toxic contaminants were in Plaintiffs’

groundwater.

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 141.

Defendant breached its duty to Plaintiffs by providing no warnings that releases,

discharges, and deposits from Plant Scherer and the Coal Ash Pond regularly exposed, and
continue to expose, Plaintiffs to toxic heavy metals and radionuclides.
142.

Any adequate warning would have minimized, reduced, and/or avoided the

foreseeable and preventable risk of harm posed by Defendant’s reckless and negligent creation
and operation of Plant Scherer and the Coal Ash Pond.
143.

If Defendant provided adequate warnings, Plaintiffs could have taken necessary

steps to prevent further harm and exposure to the unsafe levels of toxic contaminants found in
Plaintiffs’ well and groundwater.
144.

Defendant recklessly and negligently failed and/or refused to provide accurate and

adequate warnings of the health hazards and dangers of exposure to coal ash and other toxins to
Plaintiffs who would reasonably and foreseeably come into contact with or be harmed by the
toxic heavy metals and radionuclides.
145.

Defendant’s failures, actions, and/or omissions at Plant Scherer and the Coal Ash

Pond are a cause in fact and a proximate cause of Plaintiffs’ damages.
146.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including medical expenses. Plaintiffs’ personal injury damages are ongoing.
Accordingly, Plaintiffs’ total special damages are in an amount to be proven at trial.
147.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including diminution of value and the cost of restoration and repair of
Plaintiffs’ properties. The damage to Plaintiffs’ properties is ongoing. Accordingly, Plaintiffs’
total special damages are in an amount to be proven at trial.

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 148.

Plaintiffs are also entitled to be compensated for nominal damages and their

annoyance, inconvenience, and loss of use and enjoyment of their properties resulting from
Defendant’s actions as alleged herein in an amount to be determined by the enlightened
conscience of the jury.
COUNT IV – NUISANCE
149.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.
150.

The dumping of coal ash and other operations at Plant Scherer have resulted in

discharges of toxic, hazardous, and radioactive substances into the area surrounding Plant
Scherer, including the groundwater, Plaintiffs’ well water, and the air.
151.

These discharges have resulted and continue to result in the contamination and

accumulation of toxic metals and radionuclides on Plaintiffs’ properties.
152.

As a result, Plaintiffs have suffered injuries to their person, property, or both.

153.

Plaintiffs are entitled to the full use and enjoyment of their properties free from

pollutant discharges caused by Defendant. The ongoing discharges of pollutants have and are
continuing to unreasonably and substantially interfere with Plaintiffs’ use and enjoyment of their
properties.
154.

The ongoing discharges of pollutants have caused and are continuing to cause

Plaintiffs hurt, inconvenience, and/or damage within the meaning of O.C.G.A. § 41-1-1.
155.

The ongoing discharges constitute a continuing abatable nuisance, pursuant to

O.C.G.A. § 41-1-5, for which Defendant is responsible.
156.

Because Defendant created the nuisance, Plaintiffs are not required to give

Defendant notice to abate the nuisance before filing this action.

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 157.

The nuisance caused by Defendant is an actual and proximate cause of Plaintiffs’

damages and injuries.
158.

Plaintiffs’ properties have been negatively impacted by Defendant’s creation of

and failure to abate the nuisance.
159.

Defendant’s use and maintenance of Plant Scherer, as described above, constitutes

a nuisance. It is injurious to Plaintiffs’ health and offensive to Plaintiffs’ senses, so as to obstruct
the free use of Plaintiffs’ properties and interferes with Plaintiffs’ comfortable enjoyment of life.
160.

As a proximate result of the nuisance created and maintained by Defendant, the

Plaintiffs have suffered personal and property damages in an amount to be determined at trial.
161.

Plaintiffs’ properties have been diminished in value as a proximate result of the

nuisance created by Defendant in an amount to be determined at trial. Unless the nuisance
created by Defendant is abated, Plaintiffs’ properties will continue to diminish in value.
162.

As a proximate result of the nuisance created by Defendant, Plaintiffs have

suffered physical injury and extreme mental anguish and had to be placed under the care of
physicians. Plaintiffs have suffered damages in an amount to be determined by proof at trial.
163.

As a proximate result of the nuisance created by Defendant, Plaintiffs were

required to obtain medical services and treatment in an amount to be determined by proof at trial
and will, in the future, be compelled to incur additional obligations for medical treatment in an
amount to be determined by proof at trial.
164.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including medical expenses. Plaintiffs’ personal injury damages are ongoing.
Accordingly, Plaintiffs’ total special damages are in an amount to be proven at trial.

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 165.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including diminution of value and the cost of restoration and repair of
Plaintiffs’ properties. The damage to Plaintiffs’ properties is ongoing. Accordingly, Plaintiffs’
total special damages are in an amount to be proven at trial.
166.

Plaintiffs are also entitled to be compensated for nominal damages and their

annoyance, inconvenience, and loss of use and enjoyment of their properties resulting from
Defendant’s actions as alleged herein in an amount to be determined by the enlightened
conscience of the jury.
167.

Further, because the nuisance is abatable, Plaintiffs are entitled to recover both

monetary damages and have an injunction entered to remedy and prevent a continuing nuisance.
COUNT V – TRESPASS
168.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.
169.

The failure by Defendant to properly construct and maintain the Coal Ash Pond

and Defendant’s creation and operation of Plant Scherer have caused coal ash pollutants and
other toxins to enter Plaintiffs’ properties.
170.

The unpermitted invasions of Plaintiffs’ properties have resulted in the

deterioration of Plaintiffs’ properties and the air and well water located thereon.
171.

Plaintiffs neither invited nor authorized Defendant’s discharge of pollutants onto,

over, and through their properties.
172.

Defendant’s ongoing discharges of pollutants on Plaintiffs’ properties have

interfered with Plaintiffs’ rights to the exclusive possession, control, and use of their properties,
and constitute trespass.

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 173.

As a result of these trespasses, Plaintiffs have suffered damages for their inability

to exclusively possess their properties and for the restoration of their properties to their original
state.
174.

Plaintiffs have suffered both personal and property damages in an amount to be

proven at trial.
175.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including medical expenses. Plaintiffs’ personal injury damages are ongoing.
Accordingly, Plaintiffs’ total special damages are in an amount to be proven at trial.
176.

As a result of Defendant’s foregoing acts and omissions, Plaintiffs have incurred

special damages, including diminution of value and the cost of restoration and repair of
Plaintiffs’ properties. The damage to Plaintiffs’ properties is ongoing. Accordingly, Plaintiffs’
total special damages are in an amount to be proven at trial.
177.

Plaintiffs are also entitled to be compensated for nominal damages and their

annoyance, inconvenience, and loss of use and enjoyment of their properties resulting from
Defendant’s actions as alleged herein in an amount to be determined by the enlightened
conscience of the jury.
178.

Further, because Defendant’s trespass is both continuing and preventable,

Plaintiffs are entitled to recover both monetary damages and have an injunction entered to
prohibit Defendant from continuing the trespass.
COUNT VI – PHYSICAL INJURY IN VIOLATION OF O.C.G.A. § 51-1-13
179.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.

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 180.

Georgia law provides that, “[a] physical injury done to another shall give a right

of action to the injured party, whatever may be the intention of the person causing the injury,
unless he is justified under some rule of law.” O.C.G.A. § 51-1-13.
181.

Plaintiffs sustained physical injuries as a result of Defendant’s acts and omissions.

182.

The actions of Defendant were not justified under Georgia law.

183.

As a result of Defendant’s actions at Plant Scherer, Plaintiffs sustained serious

physical injuries, pain, and suffering.
184.

Plaintiffs are entitled to relief in the form of both compensatory and punitive

damages for the physical injuries they sustained as a result of Defendant’s actions.
COUNT VII – EQUITABLE CLAIM FOR MEDICAL MONITORING
185.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.
186.

As a direct and proximate result of Defendant’s acts and omissions as set forth

above, Plaintiffs have been significantly exposed to proven hazardous materials and as a result,
Plaintiffs suffer from the injuries set forth above.
187.

As a direct and proximate result of Defendant’s acts and omissions as set forth

above, Plaintiffs have a significantly increased risk of contracting more serious injuries or latent
disease and must consider additive and synergistic effects of the toxic exposure they have
suffered. This increased risk makes periodic diagnostic medical examinations reasonably
necessary.
188.

Monitoring and testing procedures are available for the early detection and

treatment of more injuries and latent disease likely to occur as a result of Defendant’s acts and
omissions, and additive and synergistic effects of the toxic exposure they have suffered.

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 189.

The Court has authority in this case to “give effect to all the rights of the parties,

legal, equitable, or both, and apply remedies or relief, legal, equitable, or both, in favor of either
party, as the nature of the case may allow or require.” O.C.G.A. § 23-3-1.
190.

The creation of a medical monitoring fund is necessary as an equitable remedy for

the significant risk of injuries and latent diseases caused by Defendant’s acts and omissions.
COUNT VIII – ATTORNEY'S FEES AND COSTS
191.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.
192.

Pursuant to O.C.G.A. § 13-6-11, Defendant has acted in bad faith, has been

stubbornly litigious, and/or has caused the Plaintiffs unnecessary trouble and expense, for which
Plaintiffs are entitled to recover their expenses of litigation, including reasonable attorney’s fees
and expenses, from Defendant.
193.

Because Defendant has failed and refused to abate the unlawful conditions on

Plaintiffs’ properties, Plaintiffs were forced to incur attorney’s fees and expenses in an effort to
resolve this matter. Plaintiffs will be forced to incur additional attorney’s fees and expenses
unless and until Defendant ceases and abates its unlawful and illegal use, occupation, and
possession of Plaintiffs’ properties.
COUNT IX – PUNITIVE DAMAGES
194.

Plaintiffs adopt and incorporate the preceding paragraphs above as if fully

restated herein.
195.

Defendant knew of the defects in and its defective maintenance of the Coal Ash

Pond, but willfully ignored them, concealed them from Plaintiffs, and failed to warn Plaintiffs
about the scope of the defects, intentionally and willingly exposing Plaintiffs to toxic materials.

- 27 -

 196.

Defendant made false and/or reckless statements about the Coal Ash Pond,

including denying that the toxic materials were leaching onto Plaintiffs’ properties and into
Plaintiffs’ well water with the specific intent to induce Plaintiffs to refrain from taking action
requiring Defendant to remediate the problem.
197.

Defendant knew its construction of Lake Juliette disrupted the pH balance in the

environment, intentionally and willingly exposing Plaintiffs to toxic materials.
198.

Defendant’s fraudulent and malicious behavior towards Plaintiffs constitutes a

pattern of bad faith conduct wherein to make money and avoid lawsuits, Defendant deliberately
conceals the known hazard its operation presents to residents in the surrounding area, such as
unmitigated pollution of Plaintiffs’ properties and well water.
199.

The actions and inactions of Defendant demonstrates willful misconduct, failure

to warn, collusion, fraudulent concealment, malice, fraud, fraudulent inducement, wantonness,
oppression, or that entire want of care that would raise the presumption of a conscious
indifference to consequences, for which Plaintiffs seek punitive damages pursuant to O.C.G.A. §
51-12-5.1.
200.

The actions and inactions of Defendant demonstrates a specific intent to cause the

intended harm authorizing punitive damages in excess of $250,000 pursuant to O.C.G.A. § 5112-5.1.
WHEREFORE, Plaintiffs pray for the following relief against Georgia Power:
a.

General and special damages for current and ongoing personal injuries and

property damages;
b.

Equitable relief in the form of a medical monitoring fund;

c.

An injunction preventing Defendant from continuing their trespass and nuisance;

- 28 -

 d.

Punitive damages in excess of $250,000;

e.

Trial by jury with respect to all issues triable to a jury;

f.

All costs and attorney’s fees associated with the prosecution of this action;

g.

Interest on the judgment at the maximum rate allowed by law; and

h.

Such other and further relief as the Court deems equitable, just and proper.

Respectfully submitted, this 29th day of July 2020.
WARGO & FRENCH LLP

ADAMS LAW FIRM

/s/ Stacey Godfrey Evans
Michael S. French
Georgia Bar No. 276680
Stacey Godfrey Evans
Georgia Bar No. 298555
David M. Pernini
Georgia Bar No. 572399
Tiffany N. Watkins
Georgia Bar No. 228805

/s/ Brian P. Adams
Brian P. Adams
Georgia Bar No. 142474
Mary Beth Hand
Georgia Bar No. 322836
598 D.T. Walton Sr. Way
Macon, GA 31201
Telephone: 478-238-0231
Facsimile: 478-216-9188

999 Peachtree Street, NE
26th Floor
Atlanta, Georgia 30309
Telephone: 404-853-1500
Facsimile: 404-853-1501
Counsel for Plaintiffs

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