Kingston coal ash workers' case swings on two upcoming court rulings

·13 min read

The future of the lawsuit by workers who say they were sickened by cleaning up the Kingston coal ash spill now hinges on decisions to be made soon by two different courts.

The first and most consequential ruling will be whether Jacobs Engineering, the Tennessee Valley Authority contractor that led the cleanup from the 2008 spill, is immune from lawsuits. A federal appeals court will make that decision.

The second, with potential long-term ramifications for suits related to coal ash, is in front of the Tennessee Supreme Court, which is considering whether to classify coal ash as silica and mixed dust. If it does, and the court also decides the Tennessee Silica Claims Priorities Act applies to this case, the number of people allowed to sue will almost certainly be reduced because their cases will not meet the statute’s requirements.

The two decisions together are likely to have a far-reaching effect on how the legal system handles coal ash cases across the country.

The Kingston cleanup workers and their families are anxiously awaiting the decisions.

“It has been nearly 3½ years since an East Tennessee jury found for plaintiffs in the Phase I trial, and still not a single person has been allowed to proceed to trial on their individual claims. Meanwhile, hundreds of workers and families continue to suffer as they await justice,” attorneys Greg Coleman, Billy Ringger, Mark Silvey said in an emailed statement to Knox News.

“But despite these delays, we must continue to respect the judicial process and remain confident that plaintiffs will prevail in these appeals and eventually proceed to Phase II trials. Having recently completed arguments before the 6th Circuit Court of Appeals, we now look forward to taking the workers’ case before the Tennessee Supreme Court in June."

More than 220 workers came forward with health problems after cleaning up the largest environmental disaster in United States history, the Kingston coal ash spill that took place at the Tennessee Valley Authority’s Kingston coal-fired power plant in Roane County.

More than 100 spouses have also filed accompanying claims because of the harm they’ve suffered because of their partners’ health conditions, according to the plaintiffs’ lawyers.

TVA contract workers remove coal ash from the edge of the Emory River next to the Kingston Fossil Plant on Thursday, Nov. 8, 2012, as part of the cleanup from the December 2008 spill. The Environmental Protection Agency announced on Wednesday, Nov. 8, 2012, it has approved TVA's preferred plan for dealing with the final phase of the cleanup.
TVA contract workers remove coal ash from the edge of the Emory River next to the Kingston Fossil Plant on Thursday, Nov. 8, 2012, as part of the cleanup from the December 2008 spill. The Environmental Protection Agency announced on Wednesday, Nov. 8, 2012, it has approved TVA's preferred plan for dealing with the final phase of the cleanup.

As the case enters its ninth year, the court battle continues now in three different courts: U.S. District Court in the Eastern District of Tennessee, the 6th U.S. Circuit Court of Appeals and the Tennessee Supreme Court. All three of these courts are dealing with different parts of the case.

The U.S. District Court is the trial court in which the case was divided into two phases. The first phase of the trial went before a jury that decided not only did Jacobs fail to meet the terms of its contract with TVA, it also failed to fulfill its duty to protect its workers.

The trial also created a legal link between coal ash and about 10 specific types of health conditions, including lung cancer, coronary artery disease, hypertension, leukemia and other “hematological malignancies,” skin cancer, allergic contact dermatitis, peripheral neuropathy, asthma, chronic obstructive pulmonary disease and respiratory conditions such as emphysema, bronchitis and more.

This verdict is important because despite the coal ash spill and initial regulations about coal ash disposal, there are still no state or federal workers protections and regulations for working with coal ash.

“There are no state or federal standards or rules specific to coal ash,” said Larry Hunt, assistant administrator for Tennessee Occupational Safety and Health Administration, in an email to Knox News. “Where employees are exposed to a physical hazard or an airborne contaminant, it is the employer’s duty to identify the hazard, and select personal protective equipment (PPE) based on the hazard or the contaminant levels to which the employee is exposed. It should be noted that PPE is the final step in the hierarchy of controls, and reliance on PPE for safety is the last resort.”

The trial is now at a standstill. With more than 220 workers' cases and over 100 accompanying spousal claims in a holding pattern, the workers and their families are waiting to hear the opinions of the other two courts that have the power to decide their future.

“This particular case being nine years long already, and even if the plaintiffs win this appeal will probably take several, several more years,” said Christopher Robinette, a torts law expert and law professor at the Southwestern Law School. “That must be really really taxing. I’ve watched my clients as they go through it and I’m really sympathetic.”

Jacobs' fight for immunity

When a government agency is acting in the interest of the public it may be entitled to immunity from lawsuits, especially from those that could cause an interference in its function. However, because this lawsuit deals with TVA, a hybrid entity, and its contractor, the question of immunity gets a bit murky.

Because TVA is not part of the lawsuit, Jacobs, as TVA’s contractor, may fill its shoes by arguing it was carrying out the will of TVA, and therefore entitled to the derivative immunity available to TVA.

If Jacobs were to receive immunity in this case, the plaintiffs would have no choice but to appeal to the U.S. Supreme Court to continue the case, Robinette said.

Coal ash spill cleanup workers gather Dec. 22, 2018, for a group photograph at the Swan Pond Sports Complex.
Coal ash spill cleanup workers gather Dec. 22, 2018, for a group photograph at the Swan Pond Sports Complex.

Jacobs is only entitled to TVA’s immunity though, if it did not violate its contract with TVA, which the plaintiffs argue it did. This issue is central to whether Jacobs is eligible for immunity.

This isn’t the first time Jacobs has asked for immunity in this case and the last time in 2014, the 6th Circuit reversed the trial court’s initial ruling to grant it.

But there’s been a change in TVA’s immunity protections. In 2019, the U.S. Supreme Court, in a unanimous decision in Thacker v. TVA, determined TVA’s actions can be separated into private or public functions. If an action is related to TVA’s private interest in selling power, then TVA is not entitled to immunity. If an action is related to TVA’s public agency role, then immunity is possible if a lawsuit would cause grave interference in its function.

Robinette and Alex Long, an expert in torts and law professor at the University of Tennessee, said Jacobs needs to prove three facts to assume TVA’s shield of immunity:

  1. TVA was acting as a government agency in the cleanup of the spill and not in its private interest of selling power.

  2. This lawsuit would cause grave interference in TVA’s function as a government agency if it were to proceed.

  3. Jacobs, in order to step into TVA’s shoes for this suit, fulfilled its contract and was carrying out the will of TVA at the cleanup site.

“And Jacobs has to win all three of those in order to claim immunity, whereas the plaintiffs have to only win one of those three, to be able to go forward with the second phase of the trial,” Robinette said.

After hearing oral arguments on these issues in March, the 6th Circuit took an unusual step and asked TVA for its input to help the court make a decision. In essence, the court was asking TVA what arguments it would make if it was being sued instead of Jacobs.

“It's unusual, appellate courts don't often ask people for amicus briefs,” Robinette said. “People usually volunteer that and one gets the sense that they sometimes read them enthusiastically and sometimes not so much, but actually reaching out for one is not something that is common.”

But it makes sense, Robinette and Long said.

“I mean, nobody knows better than TVA how its future ability to go carry out its governmental functions are going to be impacted by permitting suit here. So it makes perfect sense that the 6th Circuit would want to hear from the horse's mouth,” Long said.

TVA filed its amicus brief for the case on Monday.

“Although TVA is not a party to the Jacobs litigation, the Sixth Circuit Court of Appeals invited us to file a “friend of the court” brief to provide perspective related to the framework of TVA’s government immunity under a prior judicial decision. TVA filed our brief accordingly and we will continue to respect the judicial process,” TVA spokesman Scott Brooks said in an emailed statement to Knox News.

Through this lens though, TVA highlights the difference in how it, as a hybrid government entity, could receive immunity through multiple avenues and not necessarily how that would extend to its contractor.

“The brief supports the proposition that if TVA had been sued directly, they would be immune, but it does not touch on the issue of whether Jacobs would be entitled to their immunity as a derivative matter,” Robinette said.

For the rest of its brief, most of TVA’s arguments align with those made by Jacobs, though there is one part of the test that TVA not only had to work around in its brief but also left unaddressed: Did Jacobs fulfill or violate its contract to TVA in ensuring sitewide safety by following the sitewide safety and health plan it created, and therefore ruin its eligibility to assume the immunity extended to TVA?

“I think TVA’s brief was focused very specifically on the legal issues in this case regarding the immunity questions, and it did not really get into the weeds on the issue of whether Jacobs was following orders effectively, whether it was doing what it was supposed to do,” Long said.

According to the verdict in the first part of the trial, a jury ruled that Jacobs “failed to adhere to the terms of its contract with TVA, or the requirements set forth in the site wide safety and health plan for the Kingston site.”

Both TVA and Jacobs expressed their views before the court that TVA was acting in its government role during the cleanup, and was recognized as such under the federal Comprehensive Environmental Response, Compensation and Liability Act, better known as the CERCLA or Superfund law.

The plaintiffs’ lawyers argue TVA would not have been designated the lead federal agency on the cleanup site had there not been a coal ash spill in the first place. They further argue the spill was caused by TVA’s private interest in selling power.

TVA disagrees, but specifically says the injuries that the plaintiffs suffered were not from the spill itself but the alleged violations of the sitewide safety and health plan.

TVA again had to work around allegations Jacobs violated the contract when addressing the question of grave interference. It basically had to establish that if there were no violations and TVA had established minimum safety standard as set by CERCLA, then the plaintiffs would be challenging the federal regulations.

“In other words, plaintiffs’ allegations would amount to a claim that the minimum safety standards TVA established for the CERCLA cleanup were not sufficiently protective of site workers,'' TVA said in its amicus brief.

With each question, TVA has to work through the allegations made against Jacobs even with the question of whether the lawsuit poses a grave interference to its function.

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“The only thing I would emphasize, again, is that the government has lost most of the cases in which it's made this argument that there would be a grave interference, even if it can satisfy the requirement that it was engaged in a governmental activity,” Long said.

“It still has to show this grave interference, and based on the Supreme Court's language, and this requires a clear showing and that the standard establishes a high bar, the government’s lost most of these cases. And to me, that's the sort of lens that helps frame the court's review.”

Ultimately, the 6th Circuit now has to weigh three points of view before offering immunity. If the court rules that Jacobs gets immunity, then the plaintiffs will have to appeal to the U.S. Supreme Court to decide their fate.

“I think Jacob has to hope that TVA shed some light on those immunity questions,” Long said.

But if the 6th Circuit denies Jacobs immunity for a second time, then the case goes back to the trial court, where phase two is still awaiting a separate decision from the Tennessee Supreme Court before proceeding.

Jacobs told Knox News it has argued from “the very outset of the case” it deserves TVA’s governmental immunity because it was TVA’s agent and TVA directed the company’s actions.

The phase two trial, Robinette said, is “getting into the weeds” about each plaintiffs’ specific claims about how their health was harmed.

Jacobs asserts in a statement sent this week to Knox News that “if the lower court proceedings continue to the next phase, the evidence will prove that the conditions claimed by the plantiffs were not caused by exposure to coal ash at Kingston.”

Is coal ash silica or fibrogenic dust?

In 2021, the trial court stayed more than 220 workers’ cases and more than 100 accompanying spousal claims after Jacobs brought a motion for summary judgment on whether Tennessee’s Silica Claims Priorities Act applied to the cases.

From Jacobs’ motion, applying the statute to this case would narrow the number of cases that could continue under the statute’s requirements for plaintiffs, such as establishing a minimum limit to occupational exposure to silica or fibrogenic mixed dust and a latency period for health conditions to manifest after being initially exposed

But the main question is whether coal ash is silica or fibrogenic dust and would therefore require this statute to be applied in this lawsuit?

Fly ash is a form of coal ash, and is the substance that the plaintiffs were exposed to during the cleanup. It’s primarily made up of silica, according to the Environmental Protection Agency.

However, coal ash in general varies across the world. Its composition and concentration of elements, such as heavy metals and even elements that emit radiation, is dependent upon where the coal was mined and how it was burned, processed or treated prior to disposal. Elements such as arsenic, cadmium and mercury are just a few that can be found in coal ash.

Additionally, the silica statute focuses on claims by individuals who have experienced health conditions caused by silica and fibrogenic exposure specifically.

These health conditions may not necessarily match up with the diseases and health conditions the workers say they have experienced as a result of exposure to coal ash..

Jacobs has seized on this point, telling Knox News in an emailed statement this week the plaintiffs “had the medical conditions that they allege were caused by exposure to coal ash long before they started working at Kingston.” Jacobs also said the conditions, including ailments like high blood pressure and heart disease, are common in the general population.

However, the jury in the first part of the trial still ruled that coal ash can be linked to the 10 specific diseases and health conditions that the plaintiffs laid out.

The trial court sent questions to the Tennessee Supreme Court about how to interpret whether the silica statute would apply.

With the questions from the trial court, the verdict from the first part of the trial and the varying composition of coal ash, this portion of the lawsuit is getting to the heart of one specific matter: What is coal ash?

“And now it's quite important from a litigation perspective, not just a scientific perspective,” Robinette said.

Anila Yoganathan is a Knox News investigative reporter.
Twitter | Anila.Yoganathan@knoxnews.com
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This article originally appeared on Knoxville News Sentinel: Kingston coal ash cleanup workers case will hinge on court rulings