TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, May 24, 2023

Kingston Coal Ash Case Appears to Settle

I have written several times before about a complex case in Tennessee involving the cleanup of coal ash after a massive spill in December 2008.  Earlier coverage is here, here, here, and here.

After the spill, the Tennessee Valley Authority (TVA) was named the lead agency for cleanup under CERCLA.  In turn, TVA designated a contractor to lead the efforts.  Cleanup continued until 2015, but in 2013 a number of workers hired by the contractor filed lawsuits alleging the contractor failed to protect them from the deleterious effects of coal ash.  Plaintiffs alleged they suffered numerous health problems due to exposure to coal ash.  The parties argued two major legal issues.  First, was the contractor entitled to TVA's sovereign immunity?  The Sixth Circuit heard arguments on this issue twice, ultimately denying the contractor derviative immunity.  The second issue was whether many of the plaintiffs' claims were subject to the Tennessee Silica Claims Priorities Act, and, thus, dismissal.  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.  The dispute centered around whether coal ash and these plaintiffs' claims are covered by the statute.  The Tennessee Supreme Court heard arguments in that case nearly a year ago, but apparently the parties have settled the case prior to a ruling.  The plaintiffs won a phase-one trial establishing, among other things, general causation.  A phase-two trial on specific causation was never held.

Anila Yoganathan of the Knoxville News Sentinel has provided terrific coverage of the case and has a story about the implications of the decade-long dispute.  She focuses on the tensions of settlement versus vindication, the effects of not receiving a ruling from the Tennessee Supreme Court, and the increased vulnerability of TVA to future coal ash suits.

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