Appeals court gives coal ash cleanup workers second legal chanceJun 5 - McClatchy-Tribune Content Agency, LLC - Jamie Satterfield The Knoxville News-Sentinel, Tenn.
A federal appeals court is resurrecting legal action by workers who claim a company hired to clean up the massive coal ash spill in Roane County lied about the danger of their work and failed to protect them from toxic fly ash. In an opinion handed down this week, the 6th Circuit U.S. Court of Appeals overturned Chief U.S. District Judge Tom Varlan's 2014 decision to toss out three lawsuits involving 48 Jacobs Engineering Group Inc. workers and spouses without hearing any proof in the case. A coal-ash containment dike at the Tennessee Valley Authority's Kingston Fossil Plant failed in December 2008, sending 5.4 million cubic yards of coal-ash sludge over 300 acres of adjacent land and into the Emory River. Varlan later deemed TVA liable for damages claimed by 800 plaintiffs in various civil actions. A mediator in 2013 parsed out damages. The Environmental Protection Agency, meanwhile, ordered TVA to clean up its $1 billion-plus mess. TVA hired Jacobs Engineering in 2009 to do that work. In August 2013, Jacobs' employees slapped the firm with a federal complaint, "alleging claims of outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud, misrepresentation and fraudulent concealment, and strict liability for ultrahazardous or abnormally dangerous activity," the 6th Circuit opinion stated. "The Plaintiffs allege that Jacobs improperly monitored the fly ash; inadequately trained the workers about the hazards associated with inhaling toxic fly ash; inadequately monitored their medical conditions; denied their requests for respirators, dust masks, and PPE; exposed them to high concentrations of fly ash toxic constituents; and fraudulently concealed and denied that they had been so exposed," the opinion continued. The workers and spouses insisted they had suffered all manner of ailments as a result, from cancer to "eye problems, sinus problems, pulmonary problems, heart problems and other health-related problems," according to the opinion. Attorneys for Jacobs Engineering argued Varlan didn't have authority to even entertain the claims. Their theory was this: The EPA enjoys the legal protection of immunity from most lawsuits. TVA was acting as an arm of the EPA and, therefore, shared that immunity blanket. Jacobs Engineering, in turn, was acting as an arm of TVA, so the firm, too, should be shielded. Varlan agreed and quickly dismissed the workers' lawsuits. A three-judge panel of the 6th Circuit was not so sure. They opined Varlan was wrong to dismiss the cases out of hand. Instead, the court has ordered the case revived and sent back to Varlan for further consideration. The court did not shut the door on immunity protection but rather opined Varlan needed to hear more -- under a different legal standard than he applied -- before deciding. Both sides in the case are expected to file new motions in response to the 6th Circuit decision. A hearing date likely won't be set for several weeks. http://www.energycentral.com/functional/news/news_detail.cfm?did=36392820 |