Hundreds of families have been pinning their hopes for justice in the nation’s largest industrial tragedy – the 2008 coal ash spill at the Kingston coal-fired power plant in East Tennessee – on a case that is making its way through federal court for nearly a decade.
According to court filings, more than 50 cleaning workers have died and hundreds more have been affected.
Their lives have been turned upside down, or even turned upside down in some cases, and they blame Jacobs Engineering, the firm hired by the Tennessee Valley Authority to supervise the cleanup at the Kingston Fossil Plant, approximately 40 miles west of Knoxville.
They claim they were not given sufficient protective gear to protect their skin and lungs from coal ash exposure. Jacobs refutes their allegations.
Their case has been diverted to Tennessee courts, where the state Supreme Court will hear arguments today that could determine whether Kingston coal ash workers – and ultimately coal ash workers across the country – have legal recourse to sue for damages they claim were caused by their exposure to coal ash.
The issue before Tennessee’s top court appears straightforward: Is coal ash essentially a combination of heavy metals and elements that emit radiation in tiny dust-sized particles known as particulate matter, or is it fundamentally a combination of heavy metals and elements that emit radiation in tiny dust-sized particles known as particulate matter when it’s drilled, cut, crushed, sawed, or ground?
The Kingston coal ash employees’ attempt to obtain damages for illnesses and deaths they claim were caused by exposure is likely to fail if the state Supreme Court rules that coal ash is silica.
If the court rules that it isn’t, the coal ash employees and their families can pursue compensation in their federal action against Jacobs Engineering, which could be worth millions of dollars.
“It’s a game-changer if Jacobs can persuade the Tennessee Supreme Court that its reading of the silica legislation is valid,” Alex Long, a torts expert and law professor at the University of Tennessee, said in a written statement to Knox News.
More than 220 workers and their spouses filed federal claims against Jacobs in 2013, alleging that the company oversaw the cleanup of more than a billion gallons of coal ash slurry that flooded 300 acres and seeped into the Clinch and Emory rivers after bursting through a broken dike at the Kingston plant storage pond on Dec. 22, 2008, deluging 300 acres and seeping into the Clinch and Emory rivers.
Workers who came into contact with 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 – claim to have developed lung cancer, coronary artery disease, hypertension, leukaemia, skin cancer, asthma, chronic obstructive pulmonary disease, and emphysema, among other illnesses.
A subset of the plaintiffs previously won a significant victory in federal court in 2018, when a jury determined that coal ash exposure may have caused their disabilities and deaths. However, this was only the first step of a two-phase experiment; in the second phase, workers must show that their illnesses were caused by the exposure and not by other variables.
Jacobs used Tennessee’s silica legislation in an attempt to derail the workers’ federal lawsuit in 2020, as the matter proceeded forward in federal court.
The silica statute makes it difficult for people to sue companies for silica exposure. The federal case has been paused by U.S. District Judge Tom Varlan to allow the state Supreme Court to weigh in.
In the early 2000s, Tennessee’s silica act established a procedure for dealing with silica and mixed exposure claims.
The statute defines “mixed dust” as “a mixture of dust constituted of silica and one or more additional fibrogenic dust capable of producing lung fibrosis if inhaled in significant amounts.”
The statute establishes the following standards for claimants to meet:
They had to have been exposed to silica or mixed dust for at least five years.
The claimants’ ailments must have manifested after a ten-year waiting period.
They must have needed a specific doctor to confirm their diagnoses.
According to Judge Varlan’s certification order, several of the workers, in this case, do not meet the statute’s qualifications.
“A federal court certifying a question like this to a state supreme court is pretty unusual,” Long said.
“However, considering how procedurally complex this case is, it’s not surprising that various legal problems could be reviewed at different periods and even in separate courts throughout the litigation.”
The application of the silica legislation to the workers’ case adds another complication to an already lengthy and difficult legal battle involving science, politics, and the legal exposure of a TVA contractor.
If the Tennessee judges determine that coal ash is covered by the silica and mixed dust legislation in this case, it might set a precedent that limits future health claims made by people who have been exposed to coal ash and live in a state with a silica and mixed dust statute.
Coal ash is a worldwide issue. Every country that has used coal has to deal with the same problem: what to do with all of the waste.
We have been burning coal in the United States for decades and will continue to do so in the future.
The garbage has been dumped in a variety of locations, including rivers, streams, and groundwater, as well as the atmosphere. TVA, for example, bury it as well.
It’s not trash that will suddenly disappear, and it’s up to real people to handle it in coal plants and dispose of it in landfills. This was the case for the cleanup crews in Kingston.
Coal ash, according to what we know, is the concentrated materials left over after the carbon has been burned away, such as heavy metals and perhaps radiation-emitting elements. Arsenic, cadmium, mercury, and perhaps radiation-emitting elements are among them.
Coal ash’s chemical composition and characteristics differ at different levels and around the world.
Depending on where the coal was mined, if other materials were added to it, how it was burned and cooled, and how it was treated after it was burned, the particle size and content of the substance can vary.
Coal ash is still being studied by a variety of specialists, including geological scientists and medical professionals.
Coal ash can contain almost every element on the periodic table, and we’re still learning about all of the potential health problems it poses.
But, while science is being investigated, the Kingston case is moving forward, and the workers may represent the best scientific and legal proof we have of what coal ash, specifically fly ash, can do to the body.
In a written statement to Knox News, the cleanup workers’ lawyers Greg Coleman, Billy Ringger, Mark Silvey, and William Ladnier said, “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.”
“We are optimistic that the Tennessee Supreme Court, like the Sixth Circuit, will not allow Jacobs to escape punishment for its wrongdoing.”
So, how will the Tennessee Supreme Court handle the application of this statute in a case where a jury has already tied the workers’ illnesses and conditions to the coal ash spill?
“Certainly, if the Tennessee Supreme Court rules that this statute applies to coal ash, plaintiff’s lawyers’ willingness to handle coal ash lawsuits in Tennessee will be impacted,” said Christopher Robinette, a torts law expert and law professor at Southwestern Law School.
The workers, their case, and the Kingston disaster have all played a role in informing communities around the country about coal ash, how it was managed following the leak, and the possible health risks it poses.
Varlan, a Tennessee silica legislation, put the federal action on hold so that the Tennessee Supreme Court could provide advice on how to apply the Tennessee Silica Claims Priorities Act, which is complicated.
The state Supreme Court is being requested to answer the following questions:
Does coal ash, which contains silica, fibrogenic dust, and other components that may cause injury but aren’t fibrogenic dust, qualify as silica or mixed dust under state law in the workers’ cases?
Does the state statute apply if coal ash qualifies as silica or mixed dust, even if the workers’ claims are based on harm caused by exposure to constituents of coal ash that are not silica or fibrogenic dust?
Is it possible to use the law at any point during the legal process?
Is the statute applicable to all cases involving silica or mixed dust exposure, or are workers’ claims exempt because they are brought under common law?
“Jacobs is looking forward to presenting its views before the Tennessee Supreme Court over Tennessee’s Silica Claims Priorities Act (the silica act),” says the firm, “Jacobs told Knox News in a written statement.
“The plaintiffs must show – through objective medical evidence from competent medical authority – that they had substantial exposure to coal ash that caused their claimed ailments under the silica act.
Jacobs argues that the silica act precludes the plaintiffs’ claims because nearly all of them have admitted that they cannot achieve this minimal showing.”
The workers, on the other hand, have at least one big defence: they say that it was the heavy metals, radiation-emitting elements, and particulate matter, not the silica in the ash, that caused their ailments.
In their move to the state Supreme Court, the workers’ attorneys argue that Tennessee’s silica legislation is unconstitutional and “applies to medical disorders caused by exposure to fibrosis-inducing substances — not to any incidental silica or mixed dust exposure.
“In this case, the plaintiffs allege damage as a result of their exposure to specific toxins, mutagens, and respirable particles in coal ash.” As a result, the legislation does not apply to their claims.”
If the justices follow the statute and categorise coal ash as silica and mixed dust, they will have to deal with seven years of court proceedings and a jury finding linking worker exposure to fly ash to ten distinct health disorders and diseases.
“I mean, not only were the complaints made years ago, but it was also after a phase one trial.” As a result, I can see courts deciding that’s just too much,” Robinette added.
“I mean, courts want to discourage waste of time and resources, and there has been a lot of waste of time and resources after the complaints were made and before this statute was addressed.”
The tiniest of all coal ash waste particles, fly ash particles are difficult to regulate during handled and must frequently be dampened down to prevent dust from spreading through the air.
Because of their small size, the particles are easily eaten or inhaled into the body, allowing the most concentrated components to enter the circulation and lungs.
The size of the particles alone, known as particulate matter, can be harmful to one’s health and is particularly regulated by the EPA’s ambient air quality guidelines.
According to a defence brief submitted to the court, fly ash can include between 40 and 60 per cent silica. Coal ash and silica, on the other hand, are not the same thing.
Just ask the Occupational Safety and Health Administration of Tennessee and the Environmental Protection Agency.
“Coal ash and silica are not interchangeable terms. Silica is a component of coal (and coal ash), however, there are other elements in coal ash, such as metals, sulphur, carbon, and so on. “Coal ash is a waste product of coal combustion that contains silica,” the EPA explained in written responses to Knox News.
“The amount of coal ash produced depends on the type of coal burned, the combustion method, and other site-specific parameters.” However, as previously stated, silica is only one of the many hazardous chemicals found in coal ash.”
TOSHA had a similar response when given the same question.
“No. Silica may be present in fly ash. The portion of the ash that is silica would be regulated under silica standards, while the remainder (such as lead or hexavalent chromium) would be considered ‘particulates not otherwise regulated,’ which determines the airborne concentration for nuisance dust,” TOSHA assistant administrator Larry Hunt told Knox News in written responses.
“I think the delay issue is probably (the workers’) best position,” Robinette said, “but I think they have a pretty strong point to make on whether the legislation applies in the sense that this statute was created to deal with silicosis in the wake of false claims in the early 2000s.” “As a result, coal ash was not the major goal of the legislation.”
The statute’s phrasing does not specify how much silica must be present in the dust to qualify as “mixed dust,” which could have an impact on how the legislation is applied, particularly when dealing with coal ash.
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While fly ash can contain 40 per cent to 60 per cent silica, each coal ash is unique, and the remaining 40 per cent to 60 per cent can contain heavy metals and potentially radioactive materials.
It’s really simply a question of which aspect of the coal ash hurts the body first, given this combination of ingredients and the actual health concern posed by the tiny particle size.