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    Contractor denied immunity in coal ash lawsuit


    May 19, 2022 - Anila Yoganathan

     

      The hundreds of coal ash cleanup workers suing a Tennessee Valley Authority contractor won a major victory Wednesday when a federal appeals court refused to allow the company to shield itself from a lawsuit that asserts workers were sickened, and in some cases died, from the work.

      Jacobs Engineering was the sitewide safety contractor hired by TVA to handle the massive operation to clean up the spill, which dumped 5.4 million cubic yards of coal ash across 300 acres near the Kingston coal-fired power plant in December 2008.

      The 6th U.S. Circuit Court of Appeals rejected Jacobs Engineering's claim that it was entitled to the same immunity TVA would have had as a federal agency, saying TVA would not have had immunity, either.

      The court, in its opinion reviewed by Knox News, wrote that "Jacobs concedes that it is immune from suit only if the TVA is immune."

      The decision means the case against Jacobs by the cleanup workers moves forward toward a second phase in which each person will need to prove their illnesses were directly caused by coal ash exposure.

      Additionally, said Christopher Robinette, a torts law expert and law professor at the Southwestern Law School, "On the macro level, it means that TVA is more vulnerable to lawsuits than it was prior to this decision."

      Jacobs told Knox News it is "reviewing the opinion" and has "no comment at this time."

      Coal ash is the byproduct of burning coal to produce electricity, and the waste from the Kingston plant in Roane County, about 40 miles west of Knoxville, was stored in a pond.

      When a dike containing the coal ash pond ruptured, the slurry deluged the nearby land and traveled into waterways, including the Clinch and Emory rivers.

      Thousands of workers toiled to contain and clean up the spill, a job that was completed in 2015. During the cleanup, the lawsuit says, workers were told coal ash was harmless, but some sought protective gear and say they were denied.

      More than 220 workers and more than 100 spouses of workers filed suit in federal court in 2013 asserting they are suffering from illnesses, or in some cases have died, from the exposure to coal ash without proper protective gear. Jacobs has denied the workers were denied protective gear.

      The workers prevailed in the first phase of their lawsuit in November 2018, establishing their illnesses could have been caused by exposure to coal ash, which is riddled with heavy metals and elements that emit radiation. In the second phase, each worker must prove their specific illnesses were caused by the unprotected exposure.

      "We are pleased with the court's decision and believe it finally dispenses with the notion that Jacobs could be legally immune from liability despite the abhorrent treatment of the workers who helped clean up the nation's largest coal ash spill. These workers deserve justice, and this decision helps clear the path," plaintiffs lawyers Greg Coleman, Billy Ringger, Mark Silvey and William Ladnier said in a written statement to Knox News.

      Jacobs' request for immunity has come up multiple times throughout the case. The company's latest appeal to the 6th Circuit Court of Appeals argued that it deserved the same immunity available to federal agencies like TVA because it worked on behalf of TVA, a concept known as derivative immunity.

      The appeals court rejected the argument.

      "TVA is not a party in the Jacobs litigation. We will continue to respect the judicial process," TVA spokesperson Scott Brooks said in a written statement to Knox News.

      This is the second time the 6th Circuit Court of Appeals has rejected a motion for derivative immunity for Jacobs.

      With this latest decision, Jacobs has two options if it wants to continue its fight for immunity:

      The company could ask the full panel of 6th Circuit Court of Appeals judges to hear the case. Almost all cases are heard by a three-judge panel, but the appeals court can agree to a en banc hearing that brings together all 16 judges.

      Jacobs could do what it did last time and petition its case to be heard by the U.S. Supreme Court, which declined to hear the case.

      For now, though, "Honestly, the big point here is the saga continues," Robinette said.

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