Firm wants ash safety suit dismissed

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By Damon Lawrence

Jacobs Engineering Group Inc. has responded to the federal lawsuit Knoxville attorney James K. Scott filed in August.

The lawsuit listed 49 plaintiffs and accused Jacobs of lying to TVA ash spill cleanup workers about the safety of fly ash.

The attorneys for Jacobs, Kenneth S. Schrupp, Jefferson C. Orr and S. Joseph Welborn, are asking that the lawsuit be dismissed.

A memorandum filed by them this month notes that the court previously dismissed WorleyParsons Corp. and Geosyntec Consultants Inc. from lawsuits filed against TVA over the December 2008 ash spill that prompted the cleanup work at TVA’s Kingston Fossil Plant.

“Defendants, Geosyntec and WorleyParsons are entitled to derivative sovereign immunity and dismissed from this case for lack of subject matter jurisdiction,” Chief U.S. District Judge Thomas Varlan ruled in 2011.

Jacobs is entitled to that same immunity, its attorneys contend.

“Jacobs’ advice to TVA falls clearly within one of the aforementioned subjects for which TVA is entitled to discretionary function immunity, namely TVA’s decisions regarding what safety and health protection policies and procedures should govern disposal, clean up, removal and remediation of the coal ash following the ash spill,” the memorandum said.

“Accordingly, Jacobs, like WorleyParsons and Geosyntec in the Chesney (ash spill litigation) case, is entitled to share in that immunity and moves to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction.”

Jacobs prepared a Site Wide Safety and Health Plan for the ash spill cleanup that was approved in 2009 by the U.S. Environmental Protection Agency and TVA.

The memorandum accuses Scott of cherry-picking from that plan to hype his lawsuit. The attorneys for Jacobs specifically mention a table on fly ash constituents that was included in the safety plan.

“Interestingly, Table 4.1 of the SWSHP is the very same chart/information cited by the plaintiffs in their complaint at paragraphs 55-57 and 72 as information in Jacobs’ ‘possession,’” the memorandum said.

“The plaintiffs’ generalized allegations in this regard are clearly intended to mislead the reader into believing that Jacobs, and Jacobs alone, had this information. In reality, this information is identified and listed in the SWSHP and has been available for viewing by the general public (including all of the plaintiffs) on the internet for over four years.”

In the lawsuit, the plaintiffs allege they were improperly exposed to high concentrations of fly ash constituents.

“The plaintiffs’ complaint is devoid, however, of any allegations that fly ash at the KIF plant contained constituents at levels that exceeded the exposure levels indicated in the chart set out at paragraph 56 of the plaintiffs’ complaint,” the memorandum said.

“It is similarly devoid of any allegations that plaintiffs were exposed to or inhaled fly ash containing constituents that exceeded the ‘site exposure limit’ or the ‘site action level.’”