The Kingston Coal Ash Spill, Derivative Immunity, and the Tennessee Silica Claims Priorities Act

In 2008, a dike failure at the Kingston Fossil Fuel Plant operated by the Tennessee Valley Authority released 5.4 million cubic yards of coal ash sludge from an 84-acre containment pond onto an area of approximately 300 acres.  TVA was eventually named the lead agency for cleanup  under CERCLA and hired a contractor to clean up the coal ash; the process continued through 2015.  In 2013, a number of the contractor's workers filed lawsuits claiming the contractor failed to protect them from the coal ash and they developed numerous health problems as a result.  Nine years later, the litigation sprawls across two appellate courts, the Sixth Circuit (for the second time) and the Tennessee Supreme Court.  The Sixth Circuit is set to decide whether the contractor has immunity derivative of any immunity the TVA (a hybrid government agency) would have.  The Tennessee Supreme Court, meanwhile, is going to decide whether the Tennessee Silica Claims Priorities Act applies to the case.  That statute is a reform that includes a 10-year lung cancer latency requirement, a five-year substantial occupational exposure requirement, and various requirements for medical experts providing testimony.  If the statute applies, many of the plaintiffs will be dismissed.  The issues include whether coal ash qualifies as "mixed dust" for purposes of the statute and whether the statute, not invoked until considerably after the complaints were filed, is an affirmative defense.

Anila Yoganathan of the Knoxville News Sentinel has the story.