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    Tennessee Supreme Court to decide if coal ash cleanup company is shielded from lawsuit


    June 1, 2022 - Anila Yoganathan, Knoxville News Sentinel

     

      For nearly a decade, hundreds of families have pinned their hopes for accountability in the nation's largest industrial disaster – the 2008 coal ash spill at the Kingston coal-fired power plant in East Tennessee – on a lawsuit that is inching its way through federal court.

      More than 50 cleanup workers have died, according to court records, and hundreds more have been sickened. Their lives have been upended, or ended in some cases, and they blame Jacobs Engineering, the company hired by the Tennessee Valley Authority to oversee the cleanup at its Kingston Fossil Plant, located about 40 miles west of Knoxville. They say they were not provided proper gear to protect their skin and lungs from exposure to coal ash. Jacobs denies their claims.

      Their case has taken a detour into Tennessee courts, and today the state Supreme Court will hear arguments that could determine whether the Kingston coal ash workers – and ultimately even coal ash workers across the United States – have legal recourse to sue for damages they say were caused by their exposure to coal ash.

      The question before Tennessee's highest court seems simple enough: Is coal ash basically a form of silica – a common material found in materials like concrete, bricks and mortar, glass, sand and stone – that turns into dust when it's drilled, cut, crushed, sawed or ground, or is it fundamentally a combination of heavy metals and elements that emit radiation in tiny dust-size particles known as particulate matter?

      If the state Supreme Court decides coal ash is silica, the Kingston coal ash workers' quest to recover damages for injuries and deaths they say were caused by exposure is likely to fail.

      If the court says it's not, the coal ash workers and their families can proceed in their federal case against Jacobs Engineering to seek compensation that could run into millions of dollars.

      "If Jacobs can persuade the Tennessee Supreme Court that its interpretation of the silica statute is correct, it's a game changer," Alex Long, an expert in torts and law professor at the University of Tennessee, told Knox News in a written statement.

      In 2013, more than 220 workers and more than 100 spouses of workers filed federal claims against Jacobs, which oversaw the cleanup of more than a billion gallons of coal ash slurry that burst through a broken dike at Kingston plant storage pond on Dec. 22, 2008, deluging 300 acres and seeping into the Clinch and Emory rivers.

      Workers who touched and inhaled coal ash – particularly fly ash, the airborne particles that swirled around the site as the slurry dried and was kicked up by heavy machinery used in the cleanup – say they have suffered a litany of health problems, some fatal, including lung cancer, coronary artery disease, hypertension, leukemia, skin cancer, asthma, chronic obstructive pulmonary disease and emphysema.

      A portion of the plaintiffs already won a key victory in federal court when a jury decided in 2018 their injuries and deaths could have been caused by coal ash exposure. That was just the first phase of a two-phase trial, however, and in the second phase workers will have prove their individual ailments were caused by the exposure and not other factors.

      In 2020, as the case moved forward in federal court, Jacobs invoked Tennessee's silica act in an effort to derail the workers' federal lawsuit. The silica law creates high hurdles for people to sue over silica exposure. U.S. District Judge Tom Varlan paused the federal case to allow the state Supreme Court to weigh in.

      Coal ash cleanup: 6th U.S. Circuit Court of Appeals denies immunity in coal ash cleanup for TVA contractor Jacobs Engineering

      How Tennessee courts got involved

      Tennessee's silica act created a system for handling claims of silica and mixed duexposure in the early 2000s.

      "'Mixed dust' means a mixture of dusts composed of silica and one or more other fibrogenic dusts capable of inducing pulmonary fibrosis if inhaled in sufficient quantity," the statute says.

      The act lays out requirements that claimants must meet:

      * They must have been exposed for at least five years to silica or mixed dust.

      * There must have had a latency period of 10 years for claimants' diseases to manifest.

      * They must have had to have a specific doctor verify their conditions.

      Some of the workers do not meet the requirements of the statute in this case, according to Judge Varlan's certification order.

      "It's pretty unusual for a federal court to certify a question like this to a state supreme court," Long said. "But given just how incredibly complicated this case is from a procedural standpoint, it's not terribly surprising that there could be different legal issues being considered at different times and even in different courts during the litigation."

      The application of the silica law to the workers' case adds just another complex issue to an already long and complicated lawsuit involving science, politics and the legal exposure of a contractor hired by the quasi-public TVA.

      If the Tennessee justices rule that coal ash in this case falls under the silica and mixed dust statute, then it could set a precedent limiting any future health claims made by people across the country who have been exposed to coal ash and also have a silica and mixed dust statute in their state.

      Coal ash is a universal problem. Every country that has burned coal faces the same critical question: What on earth do you do with all of the waste?

      In the U.S., we have burned coal for decades upon decades, and we're continuing to burn it. The process has deposited waste in so many places: rivers, streams and groundwater, and the air. Plant operators such as TVA also bury it.

      It's not a waste that will simply go away, and real people are responsible for handling it at coal plants and disposing of it in places such as landfills. This was the case with the workers who cleaned up Kingston.

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

      So how dangerous is it?

      From what we know, coal ash is the concentrated elements, such as heavy metals and possibly elements that emit radiation, left over after the carbon has been burned away. They include arsenic, cadmium, mercury and potentially elements that emit radiation.

      The exact chemical makeup and properties of coal ash varies at multiple levels and across the world. The material can vary in particle size and composition of elements depending on where the coal was mined, whether other materials were added to it, how it was burned and cooled, and how it was handled after it was burned.

      Coal ash still is in the process of being researched by multiple disciplines, including geochemical scientists and medical professionals. The fact is that coal ash can contain just about every element on the periodic table and we are still learning all the possible risks it poses to the human body.

      But while science is being researched, the Kingston case is moving forward and the workers themselves may be the biggest proof we have scientifically and legally of what coal ash, specifically fly ash, can do to the body.

      "We now look forward to taking the workers' case before the Tennessee Supreme Court on June 1st and addressing Jacobs' claims regarding the Tennessee Silica Claims Priorities Act," the cleanup workers' lawyers Greg Coleman, Billy Ringger, Mark Silvey and William Ladnier said in a written statement to Knox News

      "We remain confident that, like the Sixth Circuit, the Tennessee Supreme Court will not allow Jacobs to avoid liability for its malfeasance."

      So the question is, how will the Tennessee Supreme Court contend with applying this statute to a case in which a jury has already linked the workers' diseases and conditions to the coal ash from the spill?

      "Certainly, if the Tennessee Supreme Court decides that this statute applies to coal ash, it's going to affect the willingness of plaintiff's lawyers to take coal ash cases in Tennessee," said Christopher Robinette, a torts law expert and law professor at the Southwestern Law School.

      The workers, their case and the Kingston spill have been key to educating communities across the country about what coal ash is, how it was handled after the spill and the potential dangers it poses to human health.

      Claxton playground: State declares Claxton playground safe from coal ash as long as Anderson County maintains protections

      The Tennessee silica law

      Varlan paused the federal case to allow the Tennessee Supreme Court to offer guidance on how to apply the Tennessee Silica Claims Priorities Act given the complexity.

      Among the questions the state Supreme Court is being asked to answer:

      * Does coal ash, which contains silica, fibrogenic dusts and other components that may cause injury, but are not fibrogenic dusts, constitute silica or mixed dust in a way that that the state law would apply in the workers' cases?

      * If coal ash does qualify as silica or mixed dust, does the state law apply even if the workers' claims are based on injury resulting from exposure to elements of coal ash that are not silica or fibrogenic dusts?

      * Can the law be invoked at any stage of litigation?

      * Does the law apply to all cases involving exposure to silica or mixed dust, or can the workers' claims be exempt from it because they are raised under common law?

      "Jacobs looks forward to presenting its arguments about Tennessee's Silica Claims Priorities Act (the silica act) to the Tennessee Supreme Court," Jacobs said in a written statement to Knox News.

      "The silica act requires that the plaintiffs demonstrate – through objective medical evidence from a competent medical authority – that they had a substantial exposure to coal ash that could have caused their claimed illnesses. Because nearly all of the plaintiffs have conceded that they cannot make this threshold showing, Jacobs believes that the silica act bars their claims."

      But the workers have at least one major defense: it's not the silica in the ash that they are claiming caused their injuries, it's the heavy metals, elements that emit radiation, and the tiny dust size particles known as particulate matter.

      The workers' lawyers contend in their motion to the state Supreme Court that Tennessee's silica law "applies to medical conditions resulting from exposure specifically to fibrosis-inducing substances – not from any incidental exposure to silica or mixed dust.

      "Plaintiffs here allege injuries based on their exposure to individual toxins, mutagens, and respirable particulates in coal ash. The statute, thus, cannot apply to their claims."

      If the justices apply the statute and classify coal ash as silica and mixed dust, they will need to contend with more than seven years of court proceedings and the jury verdict that linked the fly ash exposure of the workers to 10 different health conditions and diseases.

      "I mean, not only was it years after the complaints were filed, it's after a phase one trial. And so I can see courts looking at that and thinking that's just too much," Robinette said.

      "I mean, courts want to disincentivize delay and wasting resources and this is a lot of resources that have gone on since the complaints were filed and before this statute was raised."

      What is fly ash?

      Fly ash particles are the smallest of all coal ash waste, are difficult to control when handling and often have to be watered down to keep the dust from spreading through the air.

      The small size also makes it easy for the particles to be ingested or inhaled into the body, bringing the most concentrated of elements into the bloodstream and lungs.

      The size of the particles alone, known as particulate matter, can pose health hazards and is specifically regulated by the Environmental Protection Agency's ambient air quality standards.

      Fly ash specifically can contain about 40% to 60% silica, according to a brief to the court by the defense. But coal ash and silica are not the same thing. Just ask the Environmental Protection Agency and the Tennessee Department of Occupational Safety and Health Administration.

      "Coal ash and silica are not considered to be the same. Silica is a component of coal (and coal ash), but there are other components, such as metals, sulfur, carbon, etc. that may also be present in coal ash. Coal ash is a waste product of burning coal, and it contains silica," the EPA told Knox News in written answers.

      "Coal ash contents will vary depending on the types of coal burned, combustion processes, and other site-specific factors. However, as noted above, silica is just one component of coal ash, which can also include other toxic substances."

      When asked the same question, TOSHA offered a similar answer.

      "No. Fly ash may contain silica. That portion of the ash that is silica would be regulated under standards applicable to silica, the remainder, if there is not a substance specific standard, (such as lead or hexavalent chromium) would be considered 'particulates not otherwise regulated,' which establishes the airborne concentration for nuisance dust," TOSHA assistant administrator Larry Hunt told Knox News in written answers.

      So why is this statute even a question?

      "I do think the delay issue is probably (the workers') strongest point, but I think they have a pretty strong point to make on whether the statute applies in the sense that this statute was drafted to deal with silicosis in the wake of fraudulent claims in the early 2000s," Robinette said. "And so this is not the primary target the statute was aimed at, coal ash is not."

      The language of the statute does not specify how much silica needs to exist in a dust in order for it to qualify as "mixed dust," which could impact the application of the law, especially when it is faced with a substance such as coal ash.

      While fly ash can contain about 40% to 60% of silica, every coal ash is different and the other 40% to 60% is not simply inert material but can also contain heavy metals and potentially elements that emit radiation.

      With this combination of elements, plus the actual health hazard from the tiny particle size, it's really just a question of what part of the coal ash harms the body first.

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