Home Financial responsibility Tennessee Supreme Court hears arguments over Kingston coal ash illnesses among workers – Tennessee Lookout

Tennessee Supreme Court hears arguments over Kingston coal ash illnesses among workers – Tennessee Lookout

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As workers twice rejected settlement offers and federal court judges denied multiple appeals, Jacobs Engineering Inc. turned to the Tennessee Supreme Court on Wednesday to try to escape financial liability of his role in the alleged poisoning of the Kingston coal ash disaster workforce.

Sick workers from the Kingston disaster and survivors of workers who died since a 2008 Tennessee Valley Authority coal ash spill filled the courtroom on Wednesday as Jacobs Engineering sought to convince judges to classify the ashes of coal – a stew of radioactive materials, heavy metals and poisonous poisons – as silica dust under Tennessee law.

The argument was apparently intended to force the dismissal of many, if not all, of the federal court cases the company faces in the Kingston disaster and is the first attempt in the state to include the ash of coal, the byproduct of burning coal to generate electricity, under Tennessee’s Silica Claims Priorities Act.

The Tennessee Silica Act was designed to cover cases in Tennessee involving specific illnesses associated with exposure to silica quartz dust by workers in mining, blasting, stone cutting and road construction. The law imposes various deadlines and requirements on workers seeking to recover from damage caused by silica exposure.

“Is it your position that (the Silica Claims Act) in this case encompasses coal ash in its entirety?” Judge Sarah Campbell asked Jacobs’ lawyer, Dwight Tarwater.

Tennessee Supreme Court Justice Holly Kirby questions attorneys during a June 1 hearing on whether coal ash is protected under Tennessee’s silica laws. (Screenshot from the audience.)

Turner replied, “Absolutely, Your Honor.”

“According to your interpretation, this expands the scope of the (silica claims law) exponentially,” Judge Holly Kirby said. “Breakfast cereals contain silica (as does)…Goody’s headache powder.”

Kirby questioned why Jacobs waited more than eight years after Kingston rescue workers filed a lawsuit to enforce his silica claim.

“What am I missing?” she asked.

Judge Sharon Lee echoed Kirby’s concern about Jacobs’ delay in lifting his silica defense.

“It’s almost a trap for these plaintiffs – ‘you didn’t file on time,'” Lee said.

“These are not silica claims”

Lee and Kirby weren’t the only ones to wonder why Jacobs only recently sought legal cover from a Tennessee law in an ongoing litigation since 2013 stemming from a spill at the TVA fossil plant in Kingston. .

Kingston disaster worker Mike McCarthy, who attended Wednesday’s hearing, said he was appalled and disheartened by the company’s repeated appeals since he and his colleagues convinced a federal jury in 2018 that Jacobs had failed in his duty to protect them.

That verdict set the stage for the workers to seek damages in separate lawsuits, but Jacobs’ appeals paralyzed the legal process. More than 50 workers who cleaned up the massive TVA spill have died since the 2018 verdict. At least half a dozen others are terminally ill, and more than 200 of the workers who helped with the cleanup are also sick.

“We can see two actors in court getting answers faster than the dying and the sick,” McCarthy said in reference to Wednesday’s return of a verdict in a defamation case involving actor Johnny Depp and his former girlfriend, Amber Heard.

Attorney Mark Silvey, who argued on behalf of the Kingston workers at Wednesday’s Supreme Court hearing, said the workers never claimed they were sickened by silica dust.

“(Jacobs) is seeking this court to shield him from liability for turning an environmental disaster into a tragic and preventable occupational disease disaster,” Silvey told the judges. “None of the illnesses for which these workers are asking for relief is silicosis… It’s the radioactive particles, arsenic, lead, Radium 226 and Radium 228 (in the coal ash) that are to blame. These are not silica claims.

Attorney Mark Silver pleads on behalf of Kingston coal ash cleanup workers.  (Screenshot from the Tennessee Supreme Court hearing.)
Attorney Mark Silver pleads on behalf of Kingston coal ash cleanup workers. (Screenshot from the Tennessee Supreme Court hearing.)

Tarwater countered that coal ash also contains silica and therefore should fall under Tennessee law. He first said silica dust made up 40% of the ingredients in coal ash, but later said it was 60%.

“The (Tennessee silica law) is very clear,” he said. ” It’s very clear. This case is a matter of statutory interpretation… It’s a spectacularly broad definition… This is a case of exposure to a substance that is 60% silica.

It could be months before the state high court issues a ruling. Once the court rules, the case will return to U.S. District Judge Tom Varlan for further proceedings.

Testimony: Jacobs denied workers protective gear

Internal TVA documents from 1985 show that agency officials had known for decades that its coal ashes were radioactive and full of heavy metals and dangerous toxins, but publicly asserted that the toxic substances were no more dangerous than dirt as 7.3 million tons choked 300 acres of it and polluted the public. drinking water sources in Kingston after the spill.

After a forecaster in February 2009 alerted the Occupational Safety and Health Administration of the danger that radioactive waste posed to disaster personnel, TVA claimed – incorrectly – that the workers had received protection skin and respiratory tract immediately after the spill, but no longer needed the equipment.

OSHA never followed through and, as a Tennessee Lookout investigation found, destroyed the bogus VAT report and all other records related to the radiation complaint after workers sued Jacobs in 2013. .

Immediately after OSHA’s write-off lawsuit was filed, an indemnity agreement shows the utility entered into a secret deal with Jacobs to cover the contractor’s legal costs for ash-related illnesses and deaths of coal.

Federal court testimony showed that Jacobs told cleanup workers that coal ash was safe enough to consume daily, denied their requests for protective gear, and tampered with tests designed to monitor the threat posed by radioactive waste.

Believing that TVA was immune as a quasi-governmental agency, the workers sued Jacobs. The firm tried during the early years of the litigation to convince Varlan to also declare Jacobs immune. He refused.

When the U.S. Supreme Court in 2019 stripped TVA of its automatic immunity in an unrelated case, Jacobs again raised an immunity defense. Varlan shot him down again. Jacobs appealed to the 6e United States Court of Appeals Circuit.

6e Circuit at the beginning of last month ruled that TVA would not have been immune from workers’ claims and refused to grant Jacobs immunity.

Jacobs in 2020 offered the workers $10 million if they agreed to overturn the 2018 verdict, destroy all records of Jacobs’ conduct in the cleanup, and never speak about what happened to them again. The workers refused.

The Tennessee Lookout has learned that the company again presented a settlement offer to workers earlier this year. They also refused it.

Although McCarthy did not disclose any information about the settlement offers during an interview Wednesday with the Tennessee Lookout, he expressed doubts about the company’s willingness to admit guilt.

“Their talk about wanting to settle down is just that – talking, nothing more,” he said. If they were sincere about it, it would have happened by now. The only way to get justice is to press for a jury trial.