6th Circuit shoots down immunity for TVA coal ash spill contractor

Coal ash slurry left behind in a containment pond near the Tennessee Valley Authorities Kingston Fossil Plant Dec. 29, 2008 in Harriman, Tenn., after the dyke at left broke Dec. 22, 2008, unleashing a billion gallon flood of toxic sludge into the Emory River. (Photo: Greenpeace USA)

by Jamie Satterfield, Tennessee Lookout
May 18, 2022

A federal appellate court on Wednesday struck down a last-ditch appeal by a Tennessee Valley Authority contractor accused in the mass poisoning by radioactive coal ash waste of the utility’s Kingston disaster workforce.

The 6th Circuit U.S. Court of Appeals ruled Jacobs Engineering Inc. cannot ride the coattails of TVA governmental immunity because TVA itself would not have been immune from liability had sickened workers chosen to sue the utility.

“Jacobs concedes that it is immune from suit only if the TVA is immune,” the opinion stated. “As analyzed … above, we conclude that the TVA would not have been immune from suit … Jacobs cannot benefit from derivative immunity if the TVA itself is not immune.”

The ruling comes more than 13 years after a pit filled with millions of tons of coal ash — a toxic stew of radioactive metals and dangerous toxins left over when TVA burns coal to produce electricity ­— gave way at TVA’s Kingston Fossil Plant in Roane County in December 2008 and more than eight years after disaster workers sued Jacobs, TVA’s clean-up contractor.

The 6th Circuit ruling affirms an earlier decision by U.S. District Court Judge Tom Varlan in the workers’ case and puts sickened workers one step closer to trials at which damages could be awarded. Since the spill, more than 50 workers are dead and more than 200 sick, death certificates and court records show.

Both Jacobs Engineering and TVA have denied wrongdoing, but a federal jury in 2018 ruled Jacobs breached both its contract with TVA and its duty to protect disaster clean-up workers. That verdict set the stage for workers to seek damages. Jacobs, though, has been appealing various aspects of Varlan’s handling of the case ever since, losing at every turn so far.

The road to decision

TVA has known for decades its coal ash was radioactive and full of dangerous heavy metals and toxins but publicly asserted the toxic stuff was no more dangerous than dirt when 7.3 million tons of it smothered 300 acres and polluted public drinking water sources in Kingston after the spill.

After a tipster in February 2009 alerted the Occupational Safety and Health Administration to the danger the radioactive waste posed the disaster workforce, TVA claimed — falsely — that workers had been provided respiratory and skin protection immediately after the spill but no longer needed the gear.

OSHA never followed up and, as revealed in a Tennessee Lookout investigation, destroyed TVA’s false report and all other records related to the radiation complaint after workers sued Jacobs in 2013.

Jacobs would go on to falsely assure the Kingston workers that coal ash was safe enough to eat daily. Workers were never told that coal ash was radioactive or that it contained other toxins, such as arsenic, cobalt, beryllium and lithium, known to be dangerous, records show.

When the Kingston workers began suffering ailments linked to the dangerous ingredients in coal ash and sought protective gear, including dust masks, managers with both TVA and Jacobs refused their requests and threatened to fire them if they persisted in seeking protection, trial testimony, depositions and TVA’s own records show.

Jacobs’ safety manager Tom Bock has since admitted in court testimony that he ordered boxes of dust masks kept on the site to be destroyed so workers could not use them.

A handful of workers later used cell phones to capture secret footage of Jacobs’ staffers appearing to tamper with testing designed to determine the threat level workers faced and a Jacobs’ supervisor telling a worker he would be “hanging yourself with your own cock” if the worker pushed for respiratory protection.

A worker cleaning up coal ash in 2009 without wearing personal protective gear. (Photo courtesy of Ben West)

Five years into the clean-up operation, more than two dozen workers filed suit against Jacobs in U.S. District Court, because TVA was then considered immune from litigation because of its status as a quasi-governmental agency.

Jacobs, records show, invoked its secret indemnity agreement and demanded TVA pay its bills if the workers’ suit was successful. TVA won’t say if the utility — and, by extension, ratepayers — is honoring that agreement.

But less than a year after workers won a favorable verdict against Jacobs, the U.S. Supreme Court dropped a legal bomb in an unrelated case — TVA, the high court said, does not enjoy carte blanche immunity, especially when its “commercial” business of producing and selling electricity is involved.

TVA: We’re still immune

That 2019 decision, in which the high court stripped TVA of immunity in the death of a fisherman beheaded by a power line the utility was raising up from the water, led to Jacobs’ latest appeal.

Jacobs insisted the high court’s ruling still allowed immunity for TVA in cases in which the utility was carrying out “governmental” functions — as opposed to purely commercial activities — and the Kingston disaster clean-up was a part of those “governmental” functions.

And, according to the firm’s argument, if TVA would still be immune from liability in the Kingston workers’ case under the high court’s 2019 ruling, so, too, would Jacobs.

Varlan, the U.S. District judge, disagreed with the firm but allowed Jacobs to seek an emergency appeal with the 6th Circuit. In a rare move, the 6th Circuit asked TVA to weigh in.

TVA responded in April, arguing the utility remains immune in the Kingston case because TVA was acting in its governmental role as “lead federal agency” over the clean up.

In its Wednesday ruling, the 6th Circuit disagreed.

“We are not persuaded by the TVA’s argument,” the judges wrote. “(The workers) have not based their claims on the inadequacy of (TVA’s plan for worker safety at the site). The suit is instead based on Jacobs’ alleged failures to comply with the plan’s provisions.”

The court also rejected claims by Jacobs that the denial of immunity for TVA contractors would “gravely interfere” with the utility’s ability to recruit firms to carry out work on behalf of TVA.

“Jacobs argues that the TVA will struggle to find government contractors in the future if the court does not consider Jacobs immune because those contractors could be liable for significant tort damages,” the 6th Circuit opinion stated. “Jacobs claims that this potential difficulty in engaging contractors constitutes a grave interference with federal operations.

“The question that Jacobs presents is whether contractors will refuse to work with the TVA in the future because they might be held liable for significant damages,” the opinion continued. “Given that this argument is predicated on speculation as to how future contractors might analyze risk, and given that Jacobs cites no caselaw to support it, we do not find the argument persuasive.”

Although Wednesday’s opinion represents a win for Kingston workers, they still face another legal hurdle before trials on damages can be set. Jacobs has asked the Tennessee Supreme Court to consider whether a state law involving silica dust – one of 26 dangerous ingredients in coal ash – would bar some workers from collecting damages. The state Supreme Court will hear arguments on that issue in June.

Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com. Follow Tennessee Lookout on Facebook and Twitter.

Published on May 20, 2022.