May 20, 2022 Mary B. Powers and Debra K. Rubin KEYWORDS coal ash spill cleanup / Fukushima nuclear plant / Jacobs / TVA Order Reprints No Comments

A federal appeals court in Cincinnati upheld on May 18 a lower court's decision denying a claim by engineering firm Jacobs that it has immunity from lawsuits by workers seeking millions in damages for health impacts from cleanup of a massive 2008 coal-ash spill at a Tennessee Valley Authority power plant in Tennessee.

Jacobs, which managed the cleanup, claimed that since TVA is a wholly owned government corporation immune from cleanup liability, the engineer also should not be liable as its contractor.

The ash spill occurred after a dike on a coal ash pond ruptured at the Kingston power plant, sending ash sludge across 300 onsite and offsite acres and into the Emory River.

'Derivative Immunity'

The U.S. district court in Knoxville, Tenn., in 2021 had denied Jacobs’ motion for “derivative immunity” because of changes in federal law, but the appeals court did not address TVA immunity, declaring that it had “no need to delve into the merits of whether the TVA could have been held liable for these alleged failures.”

After the U.S. Environmental Protection Agency delegated TVA as the lead federal agency to manage the cleanup, the power producer hired Jacobs in February 2009 for professional cleanup services, including planning, oversight and environmental review. Jacobs was designated as the prime contractor for overall site recovery and remediation.

Part of Jacobs’ role under the contract “was 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,” the appeals court said.

The firm prepared a site-specific safety and health plan that it was required to follow under its contract. “In addition, Jacobs was to be proactive in taking necessary measures to avoid accidents or incidents [in] which human health or safety is jeopardized,” the appeals court said.

Some Jacobs cleanup employees claimed that they were exposed to hazardous coal ash and airborne fly ash during the cleanup and filed complaints against the company, claiming negligence in how it conducted the project, completed in 2015 for about $1.1 billion, and exposed workers to hazards.

Plaintiffs seek $50 million in compensatory damages and $3 billion in punitive damages.

Cleanup workers and heirs of those who have since died claim they were denied personal protection equipment to protect them from toxics exposure.

A federal jury ruled in 2018 that workers’ illnesses may have been caused by the coal-ash exposure and said Jacobs “failed to adhere to the terms of its contract with TVA,” or requirements set in the power plant site’s safety and health plan, as the appeals court said. A second phase of the trial, which has not been set, will determine compensation.

Dwight E. Tarwater, outside attorney for Jacobs, said the firm is still reviewing the appellate court opinion, and declined comment. He says it has until June 1 to seek a rehearing. 

Fukushima Nuke Cleanup Contract Won

Meanwhile, the Dallas-based company was awarded a contract of undisclosed value to advise in cleanup and decommissioning of Japan’s Fukushima Daiichi nuclear power plant that was damaged by a massive earthquake-generated tsunami in 2011. 

Under a five-year framework agreement announced May 19 by Tokyo Electric Power Co. Inc., Jacobs will provide program and project management services to the utility’s site decontamination and decommissioning engineering unit. Its tasks include long-term decommissioning strategy planning, management and implementation of supply-chain resources and program definition for fuel debris retrieval, said the utility, with which it has worked since 2016.

Under the new contract, whose value was not disclosed, the utility's in-house engineering unit will assume responsibility for some work previously contracted out. 

The 9.0 earthquake,  which spawned a tsunami, caused three Fukushima reactors to melt down, causing release of radioactive material. Under the agreement, Jacobs will address the treatment of contaminated water, decontaminated water release, spent fuel, fuel debris and general site improvements, the company said.

Following a May 19 visit, International Atomic Energy Agency chief Rafael Mariano Grossi noted the cleanup effort's “remarkable progress" in the last two years, despite the pandemic.

Decommissioning is expected to take around four decades, with painstaking work to remove molten fuel from damaged reactors and disposal, beginning next year, of more than 1 million tons of treated water from the site that is currently stored in large tanks. Japan’s government has endorsed a plan to release the water into the ocean after treating it to remove almost all radionuclides and diluting it.

“Japan has made significant progress in its preparations, and IAEA is satisfied that TEPCO and [government agencies] have identified the appropriate next steps for the water discharge scheduled for 2023,” Grossi said.

But a panel of researchers named by the Pacific Islands Forum, made up of 18 independent Pacific Island countries, oppose the water discharge.

“At this point, we’re unanimous in saying we don’t see enough information to support dumping the radioactively contaminated water into the ocean,” said Robert Richmond, a research professor at the University of Hawai‘i-Mānoa and director of the Kewalo Marine Laboratory, earlier this month. “Our first recommendation to the group is to take that option off the table for now.”