Appeals court reinstates worker lawsuit related to TVA’s Kingston coal ash spill

A three-judge panel at the U.S. Sixth Circuit Court of Appeals decided on June 2 to reinstate, at least for now, lawsuits filed by workers for a contractor who did cleanup work at a notorious 2008 coal ash spill at the Tennessee Valley Authority‘s Kingston Fossil Fuel Plant in Tennessee.

This case arises out of the cleanup and remediation work that Jacobs Engineering Group performed at the Kingston plant following the December 2008 coal-ash spill. Jacobs managed the on-site work under a contract with TVA.

Individuals who worked on the coal-ash cleanup, along with some of their spouses, filed three separate lawsuits against Jacobs, claiming that the workers suffered negative health impacts as a result of Jacobs’s failure to monitor the fly ash, to protect the workers from the fly ash, and to disclose the fly ash’s toxic nature. The district court dismissed all of the plaintiffs’ claims based on a lack of subject-matter jurisdiction, concluding that Jacobs was entitled to government-contractor immunity as a corollary of the discretionary-function exception to the Federal Tort Claims Act.

“For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion,” said the June 2 appeals court decision.

TVA is a corporate agency and instrumentality of the United States, created by and existing pursuant to the Tennessee Valley Authority Act of 1933. The Kingston accident involved the spillage of approximately 5.4 million cubic yards of coal-ash sludge over 300 acres of adjacent land.

Said the appeals court in part: “All of the Plaintiffs’ claims were dismissed under Rule 12(b)(1) because the district court concluded that Jacobs is immune from suit based on so-called ‘derivative discretionary-function immunity.’ In so doing, the court relied heavily on its prior opinion in Chesney v. Tennessee Valley Authority, 782 F. Supp. 2d 570 (E.D. Tenn. 2011). The court in Chesney ruled that engineering contractors working for TVA on the same coal-ash spill were entitled to derivative immunity as set forth in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), under the discretionary-function doctrine. Chesney, 782 F. Supp. 2d at 586. It dismissed the complaint on jurisdictional grounds based on its conclusion that Yearsley entitles government contractors to sovereign immunity. Because we conclude that Yearsley immunity is not jurisdictional in nature, the district court here erred in dismissing the Plaintiffs’ complaints on that basis.”

The court later added: “In sum, we leave it to the district court on remand to decide in the first instance whether the Plaintiffs have failed to state a claim under Rule 12(b)(6). The court specifically should consider whether, based on the pleadings, (1) Jacobs is eligible for government-contractor immunity under Yearsley, and (2) Jacobs’s conduct would fall under the corollary of the discretionary-function exception to the FTCA.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.