United States District Court, E.D. Tennessee, Knoxville Division
THOMAS A. VARLAN, Chief District Judge.
These three actions, which all relate to defendant Jacobs Engineering Group, Inc.'s post-spill clean-up removal and recovery of fly ash at the Tennessee Valley Authority ("TVA") Kingston Fossil Fuel Plant (the "KIF Plant") following the coal ash spill that occurred when a containment dike at the KIF plant failed on December 22, 2008 (the "ash spill"), have been consolidated by order of the Court [Doc. 35]. Prior to consolidation, defendant moved, in each case, to dismiss all of the claims by all the plaintiffs pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the basis of derivative discretionary function immunity. For the reasons that follow, the Court will grant those motions and dismiss plaintiffs' claims.
I. Plaintiffs' Lawsuits
In Case Number 3:13-CV-505-TAV-HBG, Adkisson v. Jacobs Engineering Group, Inc., plaintiffs include individuals who allegedly "worked long hours per day in close proximity with toxic fly ash constituents" and some of their spouses [Doc. 1 ¶ 61]. They make allegations that defendant did not monitor the fly ash in violation of federal and state law, did not adequately train plaintiffs about the hazards associated with fly ash, did not adequately monitor plaintiffs' medical conditions, did not provide plaintiffs with safety equipment, did not dispose of toxic substances properly, and did not admit that plaintiffs had been exposed to hazardous substances, despite knowing the toxic nature of fly ash [ Id. ¶¶ 53-70]. Plaintiffs claim that they have suffered negative health impacts as a result of defendant's conduct, including eye problems, sinus problems, pulmonary problems, heart problems, and other health-related problems [ Id. ¶¶ 71-72]. On the basis of their allegations, they assert the following claims: outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud, misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or abnormally dangerous activity [ Id. ¶¶ 73-139]. Defendant has moved to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Doc. 10] and to strike part of plaintiffs' response to that motion [Doc. 25].
In Case Number 3:13-CV-666, Thompson v. Jacobs Engineering Group, Inc., plaintiffs are Shaun Travis Smith, Kevin Thompson, and Kevin Thompson's wife, Joy Thompson [Case No. 3:13-CV-666 Doc. 1 ¶¶ 1-2. Plaintiffs Shaun Travis Smith and Kevin Thompson allegedly worked on the KIF site during TVA's post-spill clean-up and remediation efforts at and around the KIF plant [ Id. ¶¶ 4, 15]. Plaintiffs make allegations that defendant did not monitor the fly ash in violation of federal and state law, did not adequately train plaintiffs about the hazards associated with fly ash, did not adequately monitor plaintiffs' medical conditions, did not provide plaintiffs with safety equipment, did not dispose of toxic substances properly, and did not admit that plaintiffs had been exposed to hazardous substances, despite knowing the toxic nature of fly ash [ Id. ¶¶ 9-19]. Plaintiffs have allegedly suffered negative health impacts as a result of defendant's conduct, including eye problems, sinus problems, pulmonary problems, heart problems, and other health-related problems [ Id. ¶ 23]. On the basis of these allegations, they assert the following claims: outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud, misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or abnormally dangerous activity [ Id. ¶¶ 24-90]. Defendant has moved to dismiss the action pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure [Case No. 3:13-CV-666 Doc. 7] and pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Case No. 3:13-CV-666 Doc. 16]. Plaintiffs have filed two motions to amend [Case No. 3:13-CV-666 Docs. 20, 29].
In Case Number 3:14-CV-20, Cunningham v. Jacobs Engineering Group, Inc., plaintiffs are Joe Cunningham and his wife, Taylor Cunningham [Case No. 3:14-CV-20 Doc. 1 ¶¶ 2-3]. Plaintiff Joe Cunningham allegedly worked on the KIF site during TVA's post-spill clean-up and remediation efforts [ Id. ¶ 5]. Plaintiffs claim Joe Cunningham "unintentionally brought home toxins from fly ash that he was told [were] safe" [ Id. ]. Plaintiffs make allegations that defendant did not monitor the fly ash in violation of federal and state law, did not adequately train plaintiff Joe Cunningham about the hazards associated with fly ash, did not adequately monitor plaintiff Joe Cunningham's medical conditions, did not provide plaintiff Joe Cunningham with safety equipment, did not dispose of toxic substances properly, and did not admit that plaintiff Joe Cunningham had been exposed to hazardous substances, despite knowing the toxic nature of fly ash [ Id. ¶¶ 12-21]. Plaintiff Joe Cunningham has allegedly suffered negative health impacts as a result of defendant's conduct, including eye problems, sinus problems, pulmonary problems, heart problems, and other health-related problems [ Id. ¶¶ 22-23]. Plaintiff Taylor Cunningham had a miscarriage allegedly as a result of plaintiff Joe Cunningham's exposure to toxic substances and the carrying home of those substances [ Id. ¶ 24]. On the basis of these allegations, they assert the following claims: outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud, misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or abnormally dangerous activity [ Id. ¶¶ 25-90]. Defendant has moved to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Case No. 3:14-CV-20 Doc. 6].
II. Standard of Review
A motion to dismiss on the basis of discretionary function is appropriately made under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Hatcher v. United States, 512 F.App'x 527, 528-29 (6th Cir. 2013). In consideration of a motion brought pursuant to Rule 12(b)(1), a court may review extra-complaint evidence and resolve factual disputes. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915-16 (6th Cir. 1986). "Moreover, on the question of subject matter jurisdiction[, ] the court is not limited to jurisdictional allegations of the complaint but may properly consider whatever evidence is submitted for the limited purpose of ascertaining whether subject matter jurisdiction exists." Pryor Oil Co., Inc. v. United States, 299 F.Supp.2d 804, 807 (E.D. Tenn. 2003) (citing Rogers, 798 F.2d at 915-16) (other citations omitted).
Because defendant's motions are properly brought pursuant to Rule 12(b)(1), the Court considers the affidavits and documents submitted in support and opposition of dismissal. Plaintiffs ask the Court to allow discovery to further contest defendant's motions [ See Doc. 16], but the Court finds that request unwarranted. When sovereign immunity is an issue, the D.C. Circuit has noted that "jurisdictional discovery should be carefully controlled and limited" "to avoid burdening a sovereign that proves to be immune from suit." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). Upon review of the parties' submissions, and for reasons apparent from the Court's analysis regarding application of derivative discretionary function immunity below, the Court does find that discovery would aid in determining whether derivative discretionary function immunity applies here.
TVA is a corporate agency and instrumentality of the United States created by and existing pursuant to the Tennessee Valley Authority Act of 1933 (the "TVA Act"). See 16 U.S.C. §§ 831 et seq. ; see also Hill v. U.S. Dep't of Labor, 65 F.3d 1331, 1333 (6th Cir. 1995). TVA was created by Congress "in the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins." 16 U.S.C. § 831. Through amendments to the TVA Act, Congress extended TVA's purposes to "law enforcement... in the area of jurisdiction, " id. § 831c-3(a), and "[t]o aid further the proper use, conservation, and development of the natural resources of the Tennessee River drainage basin and of such adjoining territory as may be related to or materially affected by the development consequent to this chapter, and to provide for the general welfare of the citizens of said areas...." Id. § 831u; see also U.S. ex rel. Tenn. Valley Auth. v. Welch, 327 U.S. 546, 553-54 (1946). The TVA Act also specifically authorizes TVA "[t]o produce, distribute, and sell electric power." 16 U.S.C. § 831d( l ); see also Memphis Power & Light Co. v. City of Memphis, 112 S.W.2d 817, 822 (1937) (stating that "[t]he TVA is a public instrumentality and holds the electric energy generated at its dams in trust for the people of the whole country"). In addition, the TVA Act gives TVA the power to exercise the right of eminent domain, to acquire real estate, and to take title to real estate in the name of the United States to accomplish the purposes of the TVA Act, including "the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects...." 16 U.S.C. §§ 831c(h)-(i).
TVA owns, operates, and manages the KIF plant. Chesney v. Tenn. Valley Auth., 782 F.Supp.2d 570, 572 (E.D. Tenn. 2011). On December 22, 2008, one of the containment dikes that retained a pond used to dispose of coal ash sludge produced at the KIF plant failed. 782 F.Supp.2d at 573. The burning of coal at the KIF plant's coal-fired electricity generation plant created the coal ash sludge. As a result of the dike failure, approximately 5.4 million cubic yards of coal ash sludge spilled from the 84-acre containment pond to an adjacent area of about 300 acres, consisting of primarily the Watts Bar Reservoir, the Clinch and Emory Rivers, and government and privately owned shoreline properties. Id.
Following the coal ash spill, TVA and the Environmental Protection Agency (the "EPA"), responded pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 103 et seq., ("CERCLA"), and the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. pt. 300 (2008) (the "NCP"). See Mays v. Tenn. Valley Auth., 699 F.Supp.2d 991, 998 (E.D. Tenn. 2010). During the initial emergency response phase, and pursuant to CERCLA, Executive Order No. 12, 580, and the NCP, the EPA delegated its authority to TVA to engage in coal ash removal actions. Id. (citing 42 U.S.C. §§ 9604(a)-(b); 42 U.S.C. § 9615 (authorizing the President to delegate duties and powers under CERCLA); 40 C.F.R. § 300.5). The EPA terminated the initial emergency response phase on January 11, 2009, and transferred lead agency authority to TVA for further clean up, removal, and remediation actions. Id. Since this time, all coal ash response and removal actions have been within TVA's delegated authority under CERCLA and Executive Order No. 12, 580. Id.
On January 12, 2009, in a "coordinated oversight approach" adopted by the Tennessee Department of Environment and Conservation ("TDEC") and the EPA, TDEC ordered TVA to comply with an order directing it to engage in various spill response and remediation efforts, implement removal measures, assess all of TVA's coal ash disposal facilities, submit reports detailing and analyzing the causes of the dike failure at the KIF plant, and submit a Corrective Action Plan (the "CAP"). The TDEC order directed TVA as follows:
5. Within 45 days after the receipt of this Order, the Respondent shall prepare and submit to the Department a Corrective Action Plan ("CAP"). The CAP shall include:
A. a plan for the comprehensive assessment of soil, surface water, and ground water; remediation of impacted media; and, restoration of all natural resources damaged as a result of the coal ash release;
B. a plan for monitoring the air and water in the area during the cleanup process;
C. a plan to ensure that public and private water supplies are protected from contamination and that alternative water supplies are provided if contamination is detected,
D. a plan addressing both the short term and long term management of coal ash at the Kingston Plant, including remediation and stabilization of the failed ash waste cells, proper management of the recovered ash, and a revised closure plan for the Class II ash disposal facility; and,
E. a plan to address any health or safety hazards posed by the ash to workers and the public.
7. Upon approval by the Department, the Respondent shall implement the CAP according to the schedule approved by the Department.
[Doc. 11-2 at 8-9].
Pursuant to a written contract with an effective date of February 6, 2009, TVA engaged defendant to provide professional services associated with management of the fly ash recovery project (the "Jacobs/TVA contract") [Doc. 11-1 Ex. A]. The Jacobs/TVA contract identifies as its purpose to provide "for project planning, oversight and environmental services to assist TVA in the Kingston Dredge Cell Incident recovery and remediation" and designates defendant as TVA's "prime contractor providing project planning, management and oversight to assist TVA in overall recovery and remediation associated with this incident" [ Id. at 2].
The Jacobs/TVA contract divides defendant's scope of work and professional consulting services to TVA into two phases [ Id. ]. The first phase (Phase 1) of the work called for defendant to provide assistance to TVA in (1) developing the CAP ordered by the TDEC, (2) reviewing and providing input on the Phase 1 dredging plan and engineering the Phase 2 dredging plan, (3) defining the project management structure for drainage management and ash recovery, and (4) reviewing TVA's public relations and community relations plans and developing/revising those plans [ Id. ].
On March 2, 2009, TVA, with assistance from defendant, submitted its proposed CAP for the ash spill to TDEC [Doc. 11-2 at 15-87]. TVA's CAP is organized into six sections that set forth the removal and remediation plans for the ash spill [ Id. ]. They include plans for Comprehensive Assessment [ Id. at 36-56]; Environmental Monitoring During Cleanup [ Id. at 57-60]; Management of the Coal Ash [ Id. at 68-77]; and Health and Safety to address any health or safety hazards posed by the ash to workers and the public [ Id. at 78-84].
The second phase of defendant's scope of work (Phase 2) is set out in Amendment 4 of the Jacobs/TVA contract [ See Doc. 11-1 at 45-50]. Amendment 4 provides that defendant is to develop and implement a Project Management Plan for TVA that will include all services necessary for execution of the KIF Dredge Cell Incident Recovery Program (the "Program") [ Id. at 49]. Defendant's scope of work in generalized terms is defined to include all facets of the Program, including project management with TVA oversight, engineering, environmental, community, and construction management services for all work associated with the Program [ Id. ]. Phase 2 also calls for defendant to address within the Program all "monitoring, processing, remediation, removal, hauling, and disposal of fly ash both on and off TVA property" [ Id. ].
TVA contracted with defendant to evaluate the potential hazards to human health and safety associated with the work to be performed in execution of the ash recovery and removal Program and then to "prepar[e] and submit for approval by TVA a written site specific safety and health plan at least thirty (30) days prior to the start of the work under the contract" [Doc. 11-1 at 28]. In conformance with its contractual obligations to TVA and as expressly authorized by TVA in the Jacobs/TVA contract, defendant prepared and provided to TVA for review and approval a comprehensive Site Wide Safety and Health Plan ("SWSHP") [Docs. 11-3, 11-4, 11-5]. The SWSHP was approved by the EPA and TVA on June 30, 2009 [ Id. ]. The SWSHP has been revised at least five times since originally published in March 2009 [Case No. 3:13-CV-666 Doc. 17-3 ¶ 7]. Each time the SWSHP has been revised, it has been approved and adopted by TVA and the EPA [ Id. ].
The SWSHP was written to apply to all site general construction activities as well as CERCLA remediation activities in accordance with EPA's Standard Operating Safety Guide and 29 C.F.R. § 1910.120 concerning hazardous waste operations and emergency response [ Id. ]. The SWSHP addresses both site safety hazards and worker health hazards and compliance with TVA and OSHA standards as found in 29 C.F.R. Part 1910 [ Id. ¶ 8]. The SWSHP describes the potential hazards at the site, the health hazard monitoring at the site, and personal protective equipment required for the protection of workers at the site [ Id. ; see also Case No. 3:13-CV-666 Docs. 17-4, 17-5, 17-6, 17-7]. The SWSHP also addresses work zones, site control, personal hygiene, medical surveillance, training, hazard communication, and emergency response [ Id. ]. The SWSHP provides the safety and health framework for site-specific plans and health and safety procedures, including job-specific hazard analysis, meetings, logs, reports, and recordkeeping, including the requirement that all site workers require forty-hour initial training and eight-hour annual refresher training, as well as a site specific safety orientation, which outlines site hazards and controls established to mitigate those hazards [ Id. ].
The SWSHP also identifies various hazards found on site. Section 4.2.1 of the SWSHP notes that fly ash from coal combustion will be the principal material to be processed and handled during the project [Case No. 3:12-CV-666 Doc. 17-4 at 26]. Regulations for airborne contaminants (respirable dust, total dust, crystalline silica, and metals) and their action levels and permissible site exposure limits were identified and incorporated into the SWSHP [Case No. 3:12-CV-666 Doc. 17-3 ¶ 9]. The OSHA Permissible Exposure Limits ("PEL"), the Tennessee OSHA ("TOSHA") PEL, the NIOSH Recommended Exposure Limits ("REL") and the American Conference of Governmental Industrial Hygienists ("ACGIH") Threshold Limit Values ("TLV") were all evaluated for use at the site [ Id. ]. The PEL is that limit assigned for a constituent by OSHA whether it is federal or state OSHA [ Id. ]. Thus, the PEL is the regulatory limit [ Id. ].
In Revisions 3 of the SWSHP approved and adopted by TVA and the EPA on June 30, 2009 (and each of the SWSHPs approved and adopted by TVA and the EPA thereafter), the site adopted the more conservative of the applicable OSHA or TOSHA PEL as the Occupational Exposure Limit ("OEL"), except in the case of quartz silica where the REL of 0.05mg/m3 was utilized as the site OEL [ Id. ]. This NIOSH REL of 0.05mg/m3 is 1/2 the TOSHA PEL of 0.1mg/m3 [ Id. ]. Table 4-1 of the SWSHP sets forth in more detail the Fly Ash Constituent Information including the constituent's site action level and site exposure limits [ Id. ; Case No. 3:13-CV-666 Doc. 17-4 at 27]. As referenced in Table 4-1 of the SWSHP, in addition to setting Site OELs for fly ash constituents at the more conservative of the PEL standards set by OSHA or TOSHA, defendant set the site action level for fly ash constituents at fifty percent of the applicable PEL [ Id. ].
IH monitoring at the site has been performed by two contract partners to TVA [Case No. 3:13-CV-5666 Doc. 17-3 ¶ 10]. From December 30, 2008, through May of 2010, EnSafe, Inc. ("EnSafe") performed the IH monitoring pursuant to its own IH Monitoring Plan [ Id. ]. From July of 2010 to the present, defendant has performed the IH monitoring utilizing and following the protocols for IH monitoring as set forth in the SWSHP [ Id. ]. Protocols and processes for IH monitoring are set forth in Appendix K of the October 2010 SWSHP (Revision 5) [Case No. 3:13-CV-666 Doc. 17-7]. Defendant's IH monitoring has undergone numerous internal and third-party reviews and is performed in accordance with the Jacobs/TVA contract and the SWSHP [Case No. 3:13-CV-666 Doc. 17-3 ¶ 10].
Appendix K in the October 2010 SWSHP (Revision 5) sets forth the expectations for the ongoing IH monitoring [ Id. ¶ 14; Case No. 3:13-CV-666 Doc. 17-7]. These expectations and procedures have been followed by defendant's personnel [Case No. 3:13-CV-666 Doc. 17-3 ¶ 14]. IH monitoring is ongoing, and has been since the initial coal ash spill occurred [ Id. ]. According to defendant, data collected to date by EnSafe and defendant, for personnel exposure, consistently show that regulatory standards as set forth in the SWSHP have not been exceeded, and personnel exposure to trace elements in the ash has been below any ...