Bobo v. AGCO Corporation et al

Filing 174

MEMORANDUM OPINION AND ORDER that TVA's first motion for summary judgment is GRANTED in part and DENIED in part as more fully set out thereon; the parties are ORDERED to inform this court in their proposed, amended scheduling order of not only t he date on which they anticipate that TVA's second motion for summary judgment will be ripe for decision, but also whether additional briefs in support of and opposition to that motion will be required as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/28/2013. (AHI )

FILED
2013 Oct-29 AM 08:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BARBARA BOBO,
Plaintiff,
vs.
AGCO CORPORATION
f/k/a ALLIS CHALMERS
COMPANY (as successor to
MASSEY FERGUSON
LIMITED), et al.,
Defendants.

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Civil Action No. CV 12-S-1930-NE

MEMORANDUM OPINION AND ORDER
Barbara Bobo commenced this action against nine defendants.1 Eight of those
were dismissed pursuant to stipulations for dismissal,2 leaving only her claims against
1

See doc. no. 1 (Complaint), asserting claims against: (i) Agco Corporation, formerly known
as Allis Calmers Company, sued as successor to Massey Ferguson Limited (“Agco”); (ii) CBS
Corporation, formerly known as Viacom, Inc., sued as successor-by-merger to CBS Corporation,
formerly known as Westinghouse Electric Corporation (“CBS”); (iii) Conopco, Inc., doing business
as Unilever United States, Inc., sued individually and as successor-by-merger to Helene Curtis
Industries, Inc. (“Conopco”); (iv) Consolidated Aluminum Corporation, also known as Conlaco, Inc.
(“Consolidated Aluminum”); (v) Dana Companies LLC, sued individually and as successor-ininterest to Victor Gasket Manufacturing Company (“Dana”); (vi) Ford Motor Company (“Ford”);
(vii) Metropolitan Life Insurance Company (“MetLife”); (viii) TVA; and (ix) Unilever United States,
Inc., sued individually and as successor-by-merger to Helene Curtis Industries, Inc. (“Unilever”).
2

The following claims were dismissed in accordance with stipulations of dismissal filed by
plaintiff and the defendants noted: doc. no. 18 (Ford); doc. no. 19 (Order Dismissing Ford); doc. no.
44 (AGCO); doc. no. 45 (Order Dismissing AGCO); doc. no. 47 (Conopco and Unilever); doc. no.
48 (Order Dismissing Conopco and Unilever); doc. no. 53 (Consolidated Aluminum); doc. no. 56
(Order Dismissing Consolidated Aluminum); doc. no. 60 (CBS); doc. no. 61 (Order Dismissing
CBS); doc. no. 62 (Dana Companies); doc. no. 64 (Order Dismissing Dana Companies); doc. no. 78
(MetLife); doc. no. 79 (Order Dismissing MetLife).

the Tennessee Valley Authority (“TVA”). TVA filed two motions for summary
judgment. The first is based upon the so-called “discretionary function doctrine.”3
The second motion argues that Mrs. Bobo does not have sufficient evidence to give
rise to a genuine issue of material fact: that is, the question of whether her
mesothelioma was caused by “exposures to asbestos originating from a TVA-owned
facility.”4 Oral argument on those motions and other issues was conducted on May
20, 2013.
Subsequently, on September 17, 2013, while this court was researching the
issues addressed in the present opinion, TVA filed notice “of the reported death of
Plaintiff Barbara Bobo on September 7, 2013.”5 Rule 25 of the Federal Rules of Civil
Procedure speaks to such contingencies, and provides that:
If a party dies and the claim is not extinguished,[6] the court may
order substitution of the proper party. A motion for substitution may be
made by any party or by the decedent’s successor or representative. If
the motion is not made within 90 days after service of a statement noting
3

See doc. no. 69 (TVA’s Motion for Summary Judgment on Discretionary Function
Grounds).
4

Doc. no. 122 (TVA’s second Motion for Summary Judgment), at 1. The second motion also
contends that “TVA owed no duty of care to Plaintiff under Alabama tort law.” Id.
5

Doc. no. 169 (Suggestion of Plaintiff’s Death).

6

See, e.g., Ala. Code § 6-5-462 (1975) (2005 Replacement Vol.) (“In all proceedings not of
an equitable nature, all claims upon which an action has been filed and all claims upon which no
action has been filed on a contract, express or implied, and all personal claims upon which an action
has been filed, except for injuries to the reputation, survive in favor of and against personal
representatives; and all personal claims upon which no action has been filed survive against the
personal representative of a deceased tort-feasor.”) (emphasis supplied).
2

the death, the action by or against the decedent must be dismissed.
Fed. R. Civ. P. 25(a)(1) (footnote and emphasis supplied). Accordingly, this court
entered an order directing plaintiff’s counsel to substitute the duly-appointed personal
representative of the estate of Barbara Bobo, deceased, on or before December 16,
2013, failing which the action would be dismissed.7
This court also entered an order granting plaintiff’s motion to reconsider the
previous denial of her motion for leave to amend her complaint,8 and directed the
Clerk to file plaintiff’s “First Amended Complaint.”9 The amended complaint
expands the amount of time during which plaintiff alleges that she was exposed to
airborne asbestos fibers brought into her home on the person and clothing of her
deceased husband, a former TVA employee, by a period of some twelve years: that
is, from 1975 to 1997, as opposed to the period of 1975 to 1985 alleged in the
original complaint. Even so, the basic principles underlying the issues of law that are
addressed in this opinion remain the same, regardless of the beginning and ending
dates of the injuries alleged. For that reason, and based upon the assumption that
plaintiff’s counsel will file a timely motion to substitute the real party in interest, this

7

See doc. no. 172.

8

See doc. no. 71 (Motion for Leave to Amend Complaint), doc. no. 75 (Memorandum
Opinion and Order denying motion to amend), doc. no. 77 (Motion for Reconsideration), and doc.
no. 170 (Order Granting Motion for Reconsideration).
9

See doc. no. 170, at 2. See also doc. no. 171 (First Amended Complaint).
3

court proceeds to address TVA’s first motion for summary judgment.10 Upon
consideration of that motion, the parties’ briefs, the evidentiary submissions, and the
oral arguments of counsel, the court concludes that TVA’s motion is due to be
granted, but only in part.
I. STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 918, 921 (11th Cir. 2000) (en banc) (quoting Haves v. City
of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “[A]n inference is not reasonable if it
is only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
10

See doc. no. 69 (TVA’s Motion for Summary Judgment on Discretionary Function

Grounds).
4

1321, 1324 (11th Cir. 1983). Additionally,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (alteration supplied);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law”).
II. SUMMARY OF FACTS
Barbara Bobo never worked for TVA as an employee, a contractor, or subcontractor. Moreover, she was never permitted to enter the Authority’s “Browns
Ferry Nuclear Plant” located on the North shore of the Tennessee River near Athens,
in Limestone County, Alabama.11 Instead, her claims are derivative: that is, they
grow out of the exposure of her late husband, James “Neal” Bobo, to asbestos and

11

See doc. no. 70 (Defendant’s Brief in Support of Summary Judgment on Discretionary
Function Grounds), at 3. The Browns Ferry plant was TVA’s first nuclear power plant, and the
largest in the world when it began operation in 1974. It was the first nuclear plant in the world to
generate more than 1 billion watts of power. The three operating units at Browns Ferry are boiling
water nuclear reactors. They produce electricity by splitting uranium atoms: i.e., the heat from that
process boils water, thereby producing steam that is piped to turbines, which spin a generator to
produce electricity. See, e.g., http://www.tva.gov/sites/brownsferry.htm (last visited Oct. 17, 2013).
5

asbestos-containing products while he worked in that facility.12
A.

James Bobo’s Exposure to Asbestos
James Bobo was employed by TVA as a laborer at its Browns Ferry Nuclear

Plant for more than twenty-two years, from April 15, 1975 until September 7, 1997.
During all of that time he was exposed to asbestos and products that contained
asbestos fibers, such as thermal pipe coverings, insulation, roofing cement, packing
materials, and gasket packing materials.13 Laborers such as James Bobo worked all
over the nuclear facility, primarily performing clean-up duties.14 Mr. Bobo was often
directed to assist those TVA employees who installed insulation materials that were
made from (or which contained) asbestos.15 Occasionally, he would assist the
insulators in such work; but, more often than not, Mr. Bobo was directed to clean up
12

See doc. no 83-2 (Deposition of James Bobo), at 21-23; doc. no. 83-3 (Deposition of
Priscilla Carthen), at 16, 38; doc. no. 74 (Defendant’s Brief in Opposition to Plaintiff’s Motion to
Amend Complaint), at 8.
13

Doc. no. 83-2 (Deposition of James Bobo), at 34-35. TVA’s 1967 Safety Manual noted
that asbestos thermal insulation was used at the plant and that “[e]xposures ocurre[d] during
application and removal of insulation.” Doc. no. 91-1, at ECF 5 (alterations supplied). “ECF is the
acronym for Electronic Case Filing, a filing system that allows parties to file and serve documents
electronically.” Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec.
8, 2009). Bluebook Rule 7.1.4 allows citation to “page numbers generated by the ECF header.”
Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The Bluebook: A Uniform
System of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al. Eds., 19th ed. 2010)).
Even so, the Bluebook recommends “against citation to ECF pagination in lieu of original
pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court will cite
to the original pagination in the parties’ pleadings. When the court cites to pagination generated by
the ECF header, it will, as here, precede the page number with the letters “ECF.”
14

Doc. no. 83-4 (Deposition of Jimmy Myhan), at 25-27.

15

Doc. no. 83-2 (Deposition of James Bobo), at 36.
6

after the insulators had completed their duties by sweeping up the insulation that had
fallen on the floor.16 The act of sweeping generated airborne dust containing asbestos
fibers.17 Mr. Bobo also was often present when the insulators mixed asbestoscontaining refractory cement.18
Significantly, Mr. Bobo did not change clothing at the end of each work day.
Instead, he drove to his home wearing the same clothes that he had worked in during
the day.19
B.

Plaintiff’s Exposure to Asbestos
Although plaintiff, like many Americans above the age of fifty, probably was

exposed to products containing some amount of asbestos at various times throughout
her life, she alleges that she was involuntarily subjected to an excessive quantity of
asbestos while laundering her husband’s dusty work clothes at least twice each week
throughout the years he worked for TVA at Browns Ferry.20 The washroom in
16

Id. at 36-38. The laborers would clean up the insulation using brooms, rags, and mops.
Doc. no. 83-4 (Deposition of Jimmy Myhan), at 60.
17

Doc. no. 83-2 (Deposition of James Bobo), at 34, 100, 109; doc. no. 83-4 (Deposition of
Jimmy Myhan), at 61.
18

Doc. no. 83-2 (Deposition of James Bobo), at 144-45, 147.

19

Doc. no. 83-4 (Deposition of Jimmy Myhan), at 72.

20

Doc. no. 1 (Complaint) ¶ 64. Plaintiff states in her complaint that she experienced
exposure to asbestos-containing friction products, as well as other asbestos products, from
approximately the 1940s to the late 1950s as a result of her father, a farmer, performing maintenance
on his tractors. Id. ¶ 12(b). Additionally, plaintiff “used asbestos-containing stationary hair dryers
during her career as a beautician” from 1976 through the decade of the 1990s. Id. ¶ 12(c). See also
doc. no. 83-1 (Deposition of Barbara Bobo), at 19.
7

plaintiff’s home was small. The floor dimensions were only approximately four feet
by five feet (20 square feet).21 Plaintiff’s practice was to pick-up the dirty clothing
that her husband removed at the end of a work day, carry those clothes into the
washroom, shut the door, empty the pockets, shake the articles, and then place them
into the washing machine.22

Mrs. Bobo recalled inhaling “dust” while thus

laundering her husband’s clothes.23 She described the air of the laundry room as
“[f]oggy. I just thought it was dust.”24 She also dry-swept and mopped the washroom
floor, and she said that the air also became dusty when she swept it.25
A physician diagnosed plaintiff as suffering from “pleural mesothelioma” in
November of 2011.26

“Mesothelioma” is defined as “a tumor derived from

mesothelial tissue . . . . Malignant varieties [e.g., pleural mesothelioma] are often the
result of excessive exposure to asbestos.” Dorland’s Illustrated Medical Dictionary
1134 (30th ed. 2003) (alteration supplied). “Pleural mesothelioma” is characterized
by the same, generally-accepted treatise as “a malignant mesothelioma of the pleural
space, often spreading widely and invading other thoracic structures; . . . It is usually

21

Doc. no. 83-1 (Deposition of Barbara Bobo), at 18.

22

Id. at 19.

23

Id. at 20.

24

Id. at 19 (alteration supplied).

25

Id. at 20.

26

Id. at 40-41.
8

fatal within one year.” Id. at 1135.
C.

The Tennessee Valley Authority
The Tennessee Valley Authority is a constitutionally authorized corporate

agency and instrumentality of the United States. See 16 U.S.C. §§ 831-831ee (1933).
It provides electricity for more than nine million people in seven southeastern states
at prices generally below the national average.

Congress placed broad

responsibilities on TVA, both for the nation as a whole and for the Tennessee Valley
region. See United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546,
553 (1946) (“The broad responsibilities placed on the Authority relate to navigability
[of the Tennessee River and its tributaries], flood control, reforestation, [producing
fertilizer for] marginal lands, and agricultural and industrial development of the
whole Tennessee Valley.”) (alterations supplied); see also United States ex rel.
Tennessee Valley Authority v. Three Tracts of Land, 377 F. Supp. 631, 634 (N.D. Ala.
1974) (observing that “16 U.S.C. § 831n and § 831n-4, indicate that [TVA has] . . .
broad responsibilities for the advancement of the national defense and the physical,
social and economic development of the area [served by the Authority] . . .”)
(alterations supplied).27
In order to generate revenue to pay for the responsibilities imposed upon TVA

27

See also, e.g., http://www.tva.com/abouttva/index.htm (last visited Oct. 17, 2013).
9

by its enabling Act, the Authority is authorized to “produce, distribute, and sell
electric power.” 16 U.S.C. § 831d(l) (1933); Three Tracts of Land, 377 F. Supp. at
634 (noting that Congress intended for TVA to provide “an ample supply of electric
power for such purposes”).
The Act creating TVA also provides that all real property needed to accomplish
the purposes of the Act is held “in the name of the United States of America,” and
that it is “entrusted to the Corporation as the agent of the United States to accomplish
the purposes of the [enabling Act].” 16 U.S.C. § 831c(h) (1933) (alteration supplied).
The Browns Ferry nuclear power production facility is one of the many properties
entrusted to TVA for the purpose of accomplishing the Authority’s missions.28
D.

The Application of Occupational Safety and Health Administration
Regulations to TVA
The Occupational Safety and Health Act of 1970 (“the Act”) requires federal

employers to “establish and maintain an effective and comprehensive occupational
safety and health program which is consistent with the standards promulgated under
section 6 of [the Act].” 29 U.S.C. § 668 (1970) (alteration supplied). Executive
Order 11,612, promulgated in 1971, observed that, “[a]s the Nation’s largest
employer, the Federal Government has a special obligation to set an example for safe

28

Doc. no. 70 (Defendant’s Brief in Support of Summary Judgment on Discretionary
Function Grounds), at 7.
10

and healthful employment.” 36 Fed. Reg. 13,891 (July 26, 1971) (alteration
supplied). For that reason, the order reiterated that the head of each federal
department and agency was required to “establish an occupational safety and health
program . . . in compliance with the requirements of . . . section 19(a) of [the Act],”
and each such safety program was required to “be consistent with the standards
prescribed by section 6 of [the Act].” Id. (alterations supplied).
Another Executive Order issued three years later recognized that “even greater
efforts [were] needed.” Executive Order No. 11,807, recorded at 39 Fed. Reg. 35,559
(Sept. 28, 1974) (alteration supplied). Thus, the 1974 order was designed to provide
additional guidance to ensure effective occupational safety and health programs
within executive agencies, and to allow for detailed evaluations of such programs by
the Secretary of the Department of Labor. Id.
It was not until the promulgation of Executive Order 12,196 in February of
1980, however, that federal executive agencies were specifically required to comply
with the regulations of the Occupational Safety and Health Administration
(“OSHA”). See 45 Fed. Reg. 12,769 (Feb. 26, 1980) (providing that the head of each
agency must “[c]omply with all standards issued under section 6 of [the Act] . . .”)
(alterations supplied).
E.

The Evolution of OSHA Standards
11

OSHA promulgated an emergency temporary standard for exposure to asbestos
fibers under § 6 of the Act in 1971. See 29 C.F.R. § 1910.93a (1971), recodified as
29 C.F.R. § 1910.1001 (1975). The temporary standard provided that an employee’s
exposure could “not exceed 5 fibers per milliliter greater than 5 microns in length”
over an eight-hour, time-weighted average, and could not exceed a peak
concentration level of 10 fibers per milliliter. 29 C.F.R. § 1910.93a(a). The airborne
concentration level of asbestos was to be determined by “the membrane filter method
at 400-450x magnification (4 millimeter objective) phase contrast illumination.” Id.
The exposure limits stated in the 1971 temporary standard became final in
1972, when OSHA notified employers to prepare for the following reductions in
exposure limits that were to take effect, initially, on July 7, 1972, and then be further
reduced four years thereafter, on July 1, 1976:
(b) Permissible exposure to airborne concentrations of asbestos fibers
— (1) Standard effective July 7, 1972. The 8-hour time-weighted
average airborne concentrations of asbestos fibers to which any
employee may be exposed shall not exceed five fibers, longer than 5
micrometers, per cubic centimeter of air, as determined by the method
prescribed in paragraph (e) of this section.
(2) Standard effective July 1, 1976. The 8-hour time-weighted
average air-borne concentrations of asbestos fibers to which any
employee may be exposed shall not exceed two fibers, longer than 5
micrometers, per cubic centimeter of air, as determined by the method
prescribed in paragraph (e) of this section.
(3) Ceiling concentration. No employee shall be exposed at any
12

given time to airborne concentrations of asbestos fibers in excess of 10
fibers, longer than 5 micrometers, per cubic centimeter of air, as
determined by the method prescribed in paragraph (e) of this section.
29 C.F.R. § 1910.93a(b) (1972), recodified as 29 C.F.R. § 1910.1001 (1975)
(emphasis supplied).
Additionally, OSHA laid out requirements for protective equipment and
clothing for employees such as Mr. Bobo, who were exposed to airborne
concentrations of asbestos fibers that exceed the ceiling level prescribed in Section
1910.93a(b) above.
(d)(3) Special clothing: The employer shall provide, and require
the use of, special clothing, such as coveralls or similar whole body
clothing, head coverings, gloves, and foot coverings for any employee
exposed to airborne concentrations of asbestos fibers, which exceed the
ceiling level prescribed in paragraph (b) of this section.
(4) Change rooms: (i) At any fixed place of employment exposed
to airborne concentrations of asbestos fibers in excess of the exposure
limits prescribed in paragraph (b) of this section, the employer shall
provide change rooms for employees working regularly at the place.
(ii) Clothes lockers: The employer shall provide two separate
lockers or containers for each employee, so separated or isolated as to
prevent contamination of the employee’s street clothes from his work
clothes.
(iii) Laundering: (a) Laundering of asbestos contaminated
clothing shall be done so as to prevent the release of airborne asbestos
fibers in excess of the exposure limits prescribed in paragraph (b) of this
section. . . .
29 C.F.R. § 1910.93a(d) (1972), recodified as 29 C.F.R. § 1910.1001 (1975).
13

OSHA also mandated a particular method of measuring and monitoring
asbestos concentrations in the air.
(e) Method of measurement. All determinations of airborne
concentrations of asbestos fibers shall be made by the membrane filter
method at 400-450 x (magnification) (4 millimeter objective) with phase
contrast illumination.
(f) Monitoring — (1) Initial determinations. Within 6 months of
the publication of this section, every employer shall cause every place
of employment where asbestos fibers are released to be monitored in
such a way as to determine whether every employee’s exposure to
asbestos fibers is below the limits prescribed in paragraph (b) of this
section . . . .
(2) Personal monitoring — (i) Samples shall be collected from
within the breathing zone of the employees, on membrane filters of 0.8
micrometer porossity mounted in an open-face filter holder. Samples
shall be taken for the determination of the 8-hour time-weighted average
airborne concentrations and of the ceiling concentrations of asbestos
fibers.
(ii) Sampling frequency and patterns. After the initial
determinations required by subparagraph (1) of this paragraph, samples
shall be of such frequency and pattern as to represent with reasonable
accuracy the levels of exposure of employees. In no case shall the
sampling be done at intervals greater than 6 months for employees
whose exposure to asbestos may reasonably be foreseen to exceed the
limits prescribed by paragraph (b) of this section.
29 C.F.R. §§ 1910.93a(e)-(f) (1972), recodified as 29 C.F.R. § 1910.1001 (1975).
The 1972 OSHA standard for asbestos exposure further stated that “every
employer shall provide, or make available, comprehensive medical examinations to
each of his employees engaged in occupations exposed to airborne concentrations of
14

asbestos fibers.” 29 C.F.R. § 1910.93a(j)(3).
F.

TVA Internal Policies
TVA has a safety organization that is “responsible for establishing TVA

policies and procedures for assuring safe and healthful work conditions for all
employees on TVA properties (TVA safety practices).”29 Such safety practices “are
organized generally into three tiers: agency safety practices established by the TVA
safety organization; business unit safety practices established by major business units
such as nuclear power . . . ; and site specific safety practices established by local
facilities such as Browns Ferry . . . .”30 Further, many of those safety practices
address specific standards relating to the use of asbestos at TVA properties, such as
Browns Ferry.31
1.

TVA Hazard Control Standard 407

TVA adopted “Hazard Control Standard 407” for asbestos on April 15, 1974.32
Paragraph 1.0 of that standard stated that it applied “primarily, but not exclusively,
to operations where asbestos or insulating material containing asbestos is handled,
mixed, sprayed, applied, removed, cut, or scored.”33 Paragraph 4.1.2 noted that the
29

Doc. no. 68 (Affidavit of Christopher Jeter) ¶ 2.

30

Id. ¶ 3.

31

Id. ¶ 4.

32

Id. See also doc. no. 68-1 (TVA Hazard Control Standard 407).

33

Id. at 1 (alteration supplied).
15

following are examples of materials that may contain asbestos: heat insulating
materials; fireproofing materials; transite;34 limpet fibers;35 calcium silicate block and
pipe insulation; asbestos cement, mortars, wire covers, grouting, paper, blankets, tape,
and plaster; and vehicle brake linings.36 Paragraph 4.3 prescribed the permissible
exposure level for airborne concentrations of asbestos in the following terms:
4.3.1 The 8-hour time-weighted average airborne concentration of
asbestos fibers to which an employee may be exposed shall not
exceed five fibers, each longer than five micrometers, per cubic
centimeter of air. (On July 1, 1976, the permissible concentration
for asbestos will be reduced from five fibers to two fibers, each
longer than five micrometers, per cubic centimeter of air.)
4.3.2 An employee shall not be exposed for any length of time to
airborne concentrations of asbestos fibers in excess of the ceiling
limit of 10 fibers, each longer than five micrometers, per cubic
centimeter of air without appropriate personal protective
equipment as described in paragraph 4.5 of this standard.37
Paragraph 4.4 of the Hazard Control Standard provided instructions on the
proper use of asbestos containing products:

34

“Transite” originated as a trade name for a line of asbestos-cement products, but over time,
it became a generic term for “a hard, fireproof composite material” and “fiber cement boards” that
were frequently used in wall construction. Definition of “Transite,” Wikipedia,
http://en.wikipedia.org/wiki/Transite (last visited Sept. 24, 2013).
35

“Limpet” was a mixture of cement and asbestos, and it was often used in a spray-form.
Geoffrey Tweedale, 5.8 Limpet Asbestos: Spraying Ill-Health World-Wide, World Asbestos Report,
http://worldasbestosreport.org/conferences/gac/gac2000/A5_8~182.pdf (last visited Sept. 24, 2013).
It was often used for insulation, sound-proofing, fireproofing, and condensation control. Id.
36

See doc. no. 68-1 (TVA Hazard Control Standard 407), at 2.

37

Id. at 2-3.
16

4.4.1 Engineering controls, except when technically not feasible, shall
be utilized to ensure that each individual working with or near
materials containing asbestos is not exposed to concentrations of
asbestos dust in excess of the permissible limits. Administrative
controls shall be used only if engineering controls are not
feasible.
4.4.2 When both respiratory protection and control of exposure time are
practicable, control of exposure time shall be used. The
permissible exposure time can be determined by allowing a
precalculated length of exposure to airborne concentrations of
asbestos above the permissible concentration (but in no case,
above the ceiling limit), followed by a comparable period of no
exposure. Accurate records of exposure times and airborne
asbestos concentrations shall be maintained.
4.4.3 Asbestos and materials containing asbestos shall be handled,
mixed, applied, removed, cut, scored, or otherwise used in a wet
state (except where impracticable or where the usefulness of the
product would be diminished) to prevent airborne concentrations
of asbestos fibers in excess of the permissible limits . . . .38
Paragraph 4.5 of Hazard Control Standard 407 defined the requirements for
personal protective equipment as follows:
4.5.1.1 The use of respiratory protection for controlling employee
exposure to asbestos shall be limited to the following conditions:
A.

B.

38

Prior to implementation of engineering controls or work
methods designed to maintain airborne asbestos
concentrations within the permissible limits required by
paragraph 4.3 of this standard.
Where engineering controls or administrative controls are
technically not feasible.

Id. at 3 (emphasis supplied).
17

C.

In emergency situations.

D.

Prior to determining the airborne concentrations of
asbestos in a work environment.

4.5.2 Employees exposed to airborne concentrations of asbestos fibers
greater than the ceiling limit shall be provided with and required
to use personal protective equipment to protect the eyes, head,
hands, feet, and trunk from asbestos . . . . Protective clothing shall
be utilized for exposures of undetermined concentrations until it
has been proven by tests that the activity will not produce
concentrations above the ceiling limits.39
Paragraph 4.6.2 contained standards for changing rooms, and stated that
“[e]ach employee exposed to airborne concentrations of asbestos in excess of the
ceiling limit shall be provided with two separate lockers or containers so separated
or isolated to prevent contamination of the employee’s street clothes from his work
clothes.”40
Paragraph 4.7 established requirements for “Personal and Environmental
Monitoring,” and provided that:
Initial and continuing monitoring shall be performed by the TVA Hazard
Control Branch which will quantitatively determine airborne asbestos
fiber concentration in the breathing zone of exposed employees, and in
areas of a work environment which are representative of airborne
concentrations which may reach the breathing zone of employees.
Eight-hour time-weighted average and ceiling concentrations shall be
determined. Such evaluations shall be accomplished at least
semiannually and shall represent with reasonable accuracy the levels of
39

Id. at 3-5 (emphasis supplied).

40

Doc. no 68-1 (TVA Hazard Control Standard 407), at 5 (alteration and emphasis supplied).
18

exposure of employees.41
TVA also was required to “maintain records of personal monitoring and
environmental monitoring.”42
Paragraph 4.9, addressing the subject of “Housekeeping,” provided that “the
use of air jets or dry sweeping to clean up asbestos accumulations is prohibited.”43
Finally, Paragraph 4.10.2 of Hazard Control Standard 407 mandated that
“[e]mployees exposed to airborne concentrations of asbestos fibers shall receive an
annual medical examination.”44 Significantly, records of those medical examinations
were required to be retained by TVA for twenty years.45
2.

TVA nuclear power safety and hazard control manual

TVA’s Division of Nuclear Power adopted a safety and hazard control manual
on May 8, 1978.46 The threshold limit for airborne asbestos concentrations under the
standards of that manual was “five fibers per cubic centimeter, greater than five
micrometers in length.”47 Requirement number 4 specified that “[e]mployees exposed

41

Id. at 5 (emphasis supplied).

42

Id. at 6.

43

Id.

44

Id. (alteration supplied).

45

Id.

46

See doc. no. 86-4 (Division of Nuclear Power Safety and Hazard Control Manual); doc.
no. 68-2 (TVA Asbestos Standards – Browns Ferry Nuclear Plant (1975-1985)).
47

Doc. no. 86-4 (Division of Nuclear Power Safety and Hazard Control Manual), at ECF 17.
19

to airborne concentrations of asbestos shall wear an approved respirator and
protective coveralls . . . .”48 Additionally, Requirement number 12 mandated that
“[e]ach employee exposed to airborne concentrations of asbestos shall be provided
with two separate lockers. One locker shall be used for street clothes and must not
be contaminated with asbestos.”49
3.

Browns Ferry Standard Practice 14.45

Browns Ferry adopted Standard Practice 14.45 on October 15, 1980, a
reference point that established site-specific policies and procedures governing the
use of asbestos and asbestos-containing materials.50 Standard Practice 14.45 set the
threshold limit value for airborne asbestos concentrations at “five fibers per cubic
centimeter, greater than five micrometers in length.”51 In addition, Standard Practice
14.45 provided that “[e]mployees exposed to airborne concentrations of asbestos shall
wear an approved respirator and protective coveralls . . . .”52 Annual medical
examinations were also mandated for “employees exposed to airborne concentrations
of asbestos fibers.”53
48

Id. (alteration supplied).

49

Id. at ECF 18 (alteration and emphasis supplied).

50

See doc. no. 90-2 (Browns Ferry Nuclear Plant Standard Practice 14.45), at ECF 2; doc.
no. 68-2 (TVA Asbestos Standards – Browns Ferry Nuclear Plant (1975-1985)).
51

Doc. no. 90-2 (Browns Ferry Nuclear Plant Standard Practice 14.45), at ECF 2.

52

Id. (alteration supplied).

53

Id. at ECF 3.
20

4.

1984 memorandum on TVA’s asbestos policy

A memorandum entitled “TVA Policy on Asbestos” established “additional
requirements to better protect employees from exposure to asbestos fibers.”54 The
first requirement lowered the agency target for asbestos to “no more than 0.5 fibers,
longer than 5 micrometers, per cubic centimeter of air (f/cc) as the permissible 8-hour
time-weighted average (TWA) airborne concentration of all forms of asbestos. The
ceiling level will be lowered from 10 f/cc to 5 f/cc.”55 Employees who could
“reasonably be expected to be exposed above a TWA of .1 fiber/cc” were to be
identified, given initial and annual training, and offered medical examinations.56
III. DISCUSSION
Generally speaking, the so-called “discretionary function doctrine” arises in the
context of claims brought pursuant to the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 2671-2680, 1346(b) (1946). Mays v. Tennessee Valley Authority, 699 F.
Supp. 2d 991, 1006 (E.D. Tenn. 2010). The FTCA “waived the sovereign immunity
of the United States for certain torts committed by federal employees.” Federal
Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475 (1994) (citing 28 U.S.C. §
1346(b)). Even so, the FTCA’s waiver of sovereign immunity does not extend to
54

See doc. no. 90-3 (Memorandum by W.F. Willis), at 1; doc. no. 68-2 (TVA Asbestos
Standards – Browns Ferry Nuclear Plant (1975-1985)), at 1.
55

Doc. no. 90-3 (Memorandum by W.F. Willis), at 1.

56

Id. at 2.
21

“[a]ny claim . . . based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a) (1948) (alteration and emphasis supplied). See also Mays, 699 F.
Supp. 2d at 1006. However, as the U.S. District Court for the Eastern District of
Tennessee observed in the Mays opinion,
TVA does not benefit from the discretionary function doctrine as it is
embodied in the FTCA. Rather, TVA’s waiver of sovereign immunity
is through the “sue and be sued” clause in its own enabling legislation.
In addition to the articulation of specific powers and purposes in the
TVA Act, the Act also provides that TVA “[m]ay sue or be sued in its
corporate name.” 16 U.S.C. § 831c(b).
Id. at 1006 (emphasis supplied, alteration in original).
Moreover, the same section of the FTCA that carves out the discretionary
function exception to the government’s waiver of sovereign immunity specifically
provides that the provisions of 28 U.S.C. § 1346(b)57 shall not apply to “[a]ny claim

57

The pertinent portion of this statute provides that, subject to the Tort Claims Procedures
contained in chapter 171 of Title 28 of the United States Code, the district courts of the United States
shall have exclusive jurisdiction of civil actions on claims against the United States,
for money damages . . . for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (ellipses supplied).
22

arising from the activities of the Tennessee Valley Authority.” 28 U.S.C. 2680(l)
(alteration supplied). As the Fourth Circuit observed, Congress expressly exempted
TVA from the FTCA “because it intended that legal claims ‘be exercised against the
Tennessee Valley Authority exactly as they could have been exercised against . . .
private utility companies.’” North Carolina ex rel. Cooper v. Tennessee Valley
Authority, 515 F.3d 344, 349 (4th Cir. 2008) (quoting 79 Cong. Reg. 6563-64 (1946)
(statement of Sen. Hill)) (emphasis supplied).
Nevertheless, the Supreme Court and the Eleventh Circuit have both held that
the language of TVA’s enabling act, stating that TVA “[m]ay sue and be sued in its
corporate name,” 16 U.S.C. § 831c(b), has the effect of “making the TVA liable to
suit in tort subject to certain exceptions.” United States v. Smith, 499 U.S. 160, 16869 (1991) (emphasis supplied) (citing Peoples National Bank of Huntsville, Alabama
v. Meredith, 812 F.2d 682, 684-85 (11th Cir. 1987)); see also Queen v. Tennessee
Valley Authority, 689 F.2d 80, 85 (6th Cir. 1982). As the U.S. District Court for the
Eastern District of Tennessee observed:
“Sue and be sued” clauses are presumed to be broad waivers of
sovereign immunity unless it is “clearly shown that certain types of suits
are not consistent with the statutory or constitutional scheme, [and] . .
. an implied restriction of the general authority is necessary to avoid
grave interference with the performance of a governmental function, or
that for other reasons it was plainly the purpose of Congress to use the
‘sue and be sued’ clause in a narrow sense.”
23

Mays, 699 F. Supp. 2d at 1006 (quoting FHA v. Burr, 309 U.S. 242, 245 (1940)
(footnote omitted)) (alteration in original); see also Meyer, 510 U.S. at 480-81
(quoting Burr, 309 U.S. at 245); Loeffler v. Frank, 486 U.S. 549, 554 (1988) (quoting
Burr, 309 U.S. at 245).
While the “sue and be sued” clause in TVA’s enabling statute constitutes a
broad waiver of sovereign immunity, the Eleventh Circuit has held that “TVA cannot
be subject to liability when engaged in certain governmental functions.” Peoples
National Bank of Huntsville, 812 F.2d at 685 (citing Queen, 689 F.2d at 85); see also
Edwards v. Tennessee Valley Authority, 255 F.3d 318, 322 (6th Cir. 2001) (noting
that “in certain limited situations the TVA is exempt from liability arising out of the
exercise of wholly governmental functions, where the TVA acts solely as the
Government’s agent and where the United States itself would not be liable”) (quoting
Queen, 689 F.2d at 86). This so-called “‘nonliability’ doctrine is applied when the
subject governmental function is discretionary.”

Peoples National Bank of

Huntsville, 812 F.2d at 685 (citing Morris v. Tennessee Valley Authority, 345 F.
Supp. 321 (N.D. Ala. 1972)); see also J.H. Rutter Rex Manufacturing Company, Inc.
v. United States, 515 F.2d 97 (5th Cir. 1975).58

58

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
24

“This exemption from liability for certain ‘wholly governmental functions’ has
been analyzed pursuant to the same analysis as that applied to the immunity resulting
from the discretionary function doctrine of the FTCA.” Mays, 699 F. Supp. 2d at
1007. See also, e.g., Edwards, 255 F.3d at 322; Peoples National Bank of Huntsville,
812 F.2d at 685 (applying the discretionary function doctrine to TVA).
Plaintiff urges this court not to apply the discretionary function doctrine to her
claims because the conduct upon which her claims is based grew out of TVA’s
generation of electrical power — in other words, commercial, non-governmental
conduct — and, as such, plaintiff argues that it is not conduct for which TVA should
enjoy immunity.59 In response, TVA contends that “the discretionary function
doctrine applies to TVA’s power program activities, including its power generation
activities, just as it applies to TVA’s other authorized programs.”60
Courts have found TVA not liable for conduct related to flood control and
navigation, because Congress explicitly authorized TVA to perform such duties as
part of the agency’s primary purpose and functions. Mays, 699 F. Supp. 2d at 1008
(citing Queen, 689 F.2d at 85-86); 16 U.S.C. § 831 (1933).
In addition, Congress specifically addressed TVA’s authority “[t]o produce,
59

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
Function Grounds), at 24.
60

Doc. no. 103 (Defendant’s Reply Brief in Support of Summary Judgment on Discretionary
Function Grounds), at 3.
25

distribute, and sell electric power” in 16 U.S.C. § 831d(l) (1933), and provided that
it could “acquire, operate, and maintain lands and structures to carry out the purposes
of the TVA Act.” Mays, 699 F. Supp. 2d at 1008 (citing 16 U.S.C. §§ 831c(h)-(i)
(1933)) (alteration in original).
The Eleventh Circuit affirmed the application of the discretionary function
doctrine to TVA’s statutorily-authorized, power-production activities, including
management decisions at a TVA coal-fired power plant, in Johns v. Pettibone Corp.,
843 F.2d 464, 467 (11th Cir. 1988). That opinion held that TVA’s decision to
delegate safety responsibilities to an independent contractor was a discretionary
decision giving rise to governmental immunity. Id. at 466-67. Accord Edwards, 255
F.3d at 320 (affirming a district court’s application of the discretionary function
doctrine to the dangers of power-generation “created by the discharge of water
through . . . hydroelectric turbines”); Queen, 689 F.2d at 84-85 (holding that
statements made by a TVA employee regarding TVA’s power production were within
the discretionary function doctrine); Mays, 699 F. Supp. 2d at 1009 (applying the
discretionary function doctrine to the activities of a coal-fired power plant); Hill v.
TVA, 842 F. Supp. 1413, 1420 (N.D. Ala. 1993) (noting that the acts of TVA
employees in the operation of Browns Ferry clearly were governmental in nature, as
“TVA is authorized to operate and control its nuclear power facilities”) (citing 16
26

U.S.C. §§ 831c, 831f; Three Tracts of Land, 377 F. Supp. 631).
When urging this court to distinguish between those activities of TVA that are
commercial in nature and those that are purely governmental, and to apply the
discretionary function doctrine only to the latter, plaintiff asks the court to follow the
holding of the United States Court of Appeals for the Fourth Circuit in North
Carolina ex rel. Cooper v. Tennessee Valley Authority, 515 F.3d 344 (4th Cir. 2008).
In that case, a divided panel of the Fourth Circuit declined to allow TVA the benefit
of the discretionary function doctrine in a tort case involving emissions from some
of the Authority’s fossil fuel plants, because “TVA’s power-generating activities are
commercial in nature and thus not immune to suit.” Id. at 350 n.4.61
There are two reasons for not adopting plaintiff’s argument for the extension
of the holding of the Fourth Circuit in the previous case as it pertains to the facts of
this case. Primarily, the Fourth Circuit’s holding in North Carolina is contrary to the
Eleventh Circuit’s binding decision in Johns v. Pettibone, which upheld the
application of the discretionary function doctrine to TVA’s power-production
activities — albeit in connection with the operation of a coal-fired power plant, as
61

The dissenting member of the panel in North Carolina would have found the discretionary
function doctrine applicable to TVA’s power-production activities. See North Carolina, 515 F.3d
at 354-55 (“I cannot conclude, that in authorizing the TVA ‘to sue and be sued,’ Congress intended
to traverse separation of powers principles and authorize a State suit against a federal agency
questioning the fundamental decisions of the federal government to create the TVA and build coal
plants to provide energy and thereby inherently authorize some emissions that are within federal and
state regulatory standards.”) (Niemeyer, J., concurring in part and dissenting in part).
27

contrasted to a nuclear facility: a distinction that this court does not believe should
work a difference in the decision. See Johns, 843 F.2d at 467. Further, as the Eastern
District of Tennessee stated in a persuasive opinion,
this Court will not parse the conduct or activities of TVA into the
distinct categories of commercial and governmental conduct because the
application of such distinct categories are bound to lead to disparate and
inconsistent results. Indian Towing Co. v. United States, 350 U.S. 61,
65, 76 S.Ct. 122, 100 L. Ed. 48 (1955), affirming, In re Texas City
Disaster Litigation, 197 F.2d 771 (5th Cir. 1952) (en banc) (refusing to
apply a governmental or commercial distinction because “it would push
the courts into the ‘non-governmental’ — ‘governmental’ quagmire that
has long plagued the law of municipal corporations”); see also United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (“Varig
Airlines”), 467 U.S. 797, 812, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984).
This is especially so when, as here, the challenged conduct and activities
are in furtherance of a function that TVA is explicitly authorized to
perform by the TVA Act — namely, electric power production and
distribution. See 16 U.S.C. § 831d(l).
In sum, [this court] will consider TVA’s status as a governmental
agency and instrumentality, and whether its conduct in these cases was
in furtherance of activities, a purpose, and a function that TVA was
statutorily authorized to pursue. Because TVA was authorized by
Congress to “produce, distribute, and sell electric power,” 16 U.S.C. §
831d(l), and to use and develop technology for the generation of electric
power, Congress made the governmental choice of authorizing TVA to
provide communities with various types of electric power. Such
conduct in a federally created agency and instrumentality — the exercise
of a statutorily authorized purpose — constitutes the exercise of a
“governmental function” to which the discretionary function doctrine
applies. Accordingly, [this court] will apply the discretionary function
doctrine to TVA and its conduct relating to its power production
purpose and function, thus encompassing the challenged conduct in
th[is] case[].
28

Mays, 699 F. Supp. 2d at 1009-10 (alterations supplied) (footnote omitted).
Thus, because Congress authorized TVA to “produce, distribute, and sell
electric power,” this court finds that such conduct constitutes a governmental function
to which the discretionary function doctrine may apply. See 16 U.S.C. § 831d(l)
(1933); Mays, 699 F. Supp. 2d at 1009.
A.

The Gaubert Test
The Supreme Court observed that the discretionary function doctrine “marks

the boundary between Congress’ willingness to impose tort liability upon the United
States and its desire to protect certain governmental activities from exposure to suit
by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio
Grandense, 467 U.S. 797, 808 (1984) (“Varig Airlines”); see also Autery v. United
States, 992 F.2d 1523, 1526 (11th Cir. 1993) (same).62
The Supreme Court’s decision in United States v. Gaubert, 499 U.S. 315
(1991), established a two-part test for determining whether challenged governmental
conduct falls within the scope of the discretionary function exception to liability, and
insulates the governmental agency from liability. The Eleventh Circuit has described
the two prongs of the Gaubert test as follows:
62

The district court opinion in Autery stated that the Congressional decision to “prevent
judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort” was grounded in separation of powers
principles. Autery, 992 F. Supp. 2d at 1526 (quoting Varig Airlines, 467 U.S. at 814).
29

We must first determine whether the challenged act or omission violated
a mandatory regulation or policy that allowed no judgment or choice.
United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 1273-74, 113
L. Ed. 2d 335 (1991). “The requirement of judgment or choice is not
satisfied if a ‘federal statute, regulation, or policy specifically prescribes
a course of action for an employee to follow,’ because ‘the employee
had no rightful option but to adhere to the directive.’” Id. at [322], 111
S. Ct. at 1272 (quoting Berkovitz v. United States, 486 U.S. 531, 536,
108 S. Ct. 1954, 1958, 100 L. Ed. 2d 531 (1988)).
“‘[E]ven assuming the challenged conduct involves an element of
judgment,’” however, we then must determine if the challenged actions
are the kind of conduct “‘that the discretionary function exception was
designed to shield.’” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S. Ct.
at 1958); see also Phillips v. United States, 956 F.2d 1071, 1075 (11th
Cir. 1992). The conduct must be “grounded in the policy of the
regulatory regime.” Gaubert, 499 U.S. at [325], 111 S. Ct. at 1275. In
Gaubert, the Court discussed the type of conduct that would be
considered grounded in judgment or choice but not in developing or
carrying out public policy.
[If a governmental official] drove an automobile on a
mission connected with his official duties and negligently
collided with another car, the exception would not apply.
Although driving requires the constant exercise of
discretion, the official’s decision in exercising that
discretion can hardly be said to be grounded in regulatory
policy.
Id. at [325] n. 7, 111 S.Ct. at 1275 n.7.
Autery, 992 F.2d at 1526-27 (alterations in original).
“In sum, the discretionary function doctrine insulates the government from
liability if the action challenged in the case involves the permissible exercise of
policy judgment.” Mays, 699 F. Supp. 2d at 1010 (quoting Berkovitz, 486 U.S. at
30

537).
The appropriate analysis of the discretionary function doctrine is
not whether a decision was made that involved policy considerations of
a social, economic, or political type — as virtually every decision of a
large federal agency and instrumentality such as TVA might. Rather,
the appropriate analysis is whether the particular decision or set of
decisions giving rise to the conduct are grounded in such policy
considerations. Gaubert, 499 U.S. at 323, 111 S. Ct. 1267 (emphasis
added). To this end, the Supreme Court has recognized that
discretionary decisions are not limited to decisions involving
policymaking or planning functions, but that “[d]ay-to-day
management” type decisions, such as those that “regularly require[]
judgment as to which of a range of permissible courses is the wisest []”
may also constitute discretionary decisions. Id. at 324-25, 111 S. Ct.
1267. Further, it is the nature of the conduct in question that should be
analyzed to determine whether it is of the type that Congress sought to
protect, Id. at 322, 111 S. Ct. 1267, and whether such conduct can be
said to be “based on the purposes that the regulatory regime seeks to
accomplish.” Id. at 325 n.7, 111 S. Ct. 1267.
Id. at 1016-17 (alterations and emphasis in original).
Before addressing whether the discretionary function doctrine applies to the
conduct challenged by plaintiff in this case, the first step is to “determine exactly
what conduct is at issue.” Autery, 992 F.2d at 1527.
TVA divides plaintiff’s claims into the following categories: claims that TVA
failed “to adequately warn Plaintiff Barbara Bobo of the inherent dangers of asbestos
contamination”; and, claims that “TVA caused Plaintiff to be exposed to asbestos
through exposure to her husband and his work clothes.”63 Plaintiff does not dispute
63

See doc. no. 70 (Defendant’s Brief in Support of Summary Judgment on Discretionary
31

TVA’s characterization of her claims and, therefore, it will be adopted for purposes
of the discussion that follows.
B.

TVA’s Failure to Adequately Warn Plaintiff of the Dangers of Asbestos
TVA asserts that its decision not to warn the spouses of TVA employees about

the dangers of exposure to airborne asbestos fibers that collected on the employee or
his work clothes satisfies both steps of the Gaubert test.64
TVA first argues that plaintiff’s complaint does not identify any mandatory
federal statute, regulation, or policy that specifically required TVA to warn the
spouses of its employees about such dangers; and that, to TVA’s knowledge, there
were no federal statutes, regulations, or policies that placed a mandatory duty on TVA
to do so, thus satisfying the first part of the Gaubert test.65
TVA next asserts that the second part of the Gaubert test is also satisfied,
because the decision of whether to warn spouses was “clearly susceptible to the
weighing of policy considerations.”66
Plaintiff’s response to TVA’s motion for summary judgment does not cite any
specific statute, regulation, or policy that required TVA to warn the spouses of TVA
Function Grounds), at 5 (alteration supplied); doc. no. 1 (Complaint) ¶¶ 67, 69(a)-(e).
64

See doc. no. 70 (Defendant’s Brief in Support of Summary Judgment on Discretionary
Function Grounds), at 13-14.
65

Id. at 14; doc. no. 68 (Declaration of Christopher D. Jeter) ¶ 6.

66

Doc. no. 70 (Defendant’s Brief in Support of Summary Judgment on Discretionary
Function Grounds), at 15.
32

employees about the dangers of exposure to airborne asbestos fibers that may have
collected on the employee or his work clothes.67
Because the discretionary function doctrine is considered a challenge to the
court’s subject matter jurisdiction, plaintiff bears the burden to “establish that the
discretionary function exception does not apply.” Cranford v. United States, 466
F.3d 955, 958 (11th Cir. 2006). See also OSI, Inc. v. United States, 285 F.3d 947,
951 (11th Cir. 2002) (“In the face of a factual challenge to subject matter jurisdiction,
the burden is on the plaintiff to prove that jurisdiction exists.”) (citing Thomson v.
Gaskill, 315 U.S. 442, 446 (1942)). Plaintiff failed to meet her burden as to her
failure to warn claim.
Further, TVA’s decision not to warn spouses was clearly susceptible to policy
considerations. As described in Gaubert, “[t]he focus of the inquiry is not on the
agent’s subjective intent in exercising the discretion conferred by statute or
regulation, but on the nature of the actions taken and on whether they are susceptible
to policy analysis.” Gaubert, 499 U.S. at 325 (alteration supplied); see also
Cranford, 466 F.3d at 958 (“Our inquiry does not focus either on the subjective intent
of the agent or on whether the agent actually weighed policy considerations.”)

67

See doc. no. 82 (Plaintiff’s Brief in Opposition of Summary Judgment on Discretionary
Function Grounds); doc. no. 103 (Defendant’s Reply Brief in Support of Summary Judgment on
Discretionary Function Grounds), at 4.
33

(citations omitted); OSI, 285 F.3d at 950-51 (“The exception does not require there
to have been actual ‘weighing of policy considerations.’”) (citing Hughes v. United
States, 110 F.3d 765, 768 (11th Cir. 1997)); Autery, 992 F.3d at 1530-31.
Several courts have held that failing to warn members of the public about the
dangers of exposure to a particular hazard is susceptible to the weighing of policy
considerations and, thus, within the discretionary function exception. For example,
in Bowman v. United States, the Navy’s failure to warn the public of the unsafe
condition created by its burial of toxic chemicals on government property that was
later sold was found to be “susceptible to the balancing of political, economic, and
social factors.” Bowman v. United States, 848 F. Supp. 979, 985 (M.D. Fla. 1994).
The court noted that the Navy did not decide to issue a warning and then do so
negligently; instead, the Navy chose to issue no warning at all. Id. at 986. Even if
the failure to issue a public warning was deemed to be a negligent act, the court found
that the discretionary function doctrine applied, because to find otherwise would
require the court “to substitute its judgment for that of the Navy as to what safety
precautions [were] warranted.” Id. (alteration supplied).
Following similar reasoning, numerous courts have held that the discretionary
function doctrine applies to bar claims based upon a theory of failure to warn about
the dangers of asbestos exposure resulting from governmental activities. See, e.g.,
34

Sea-Land Service Inc. v. United States, 919 F.2d 888, 892 (3d Cir. 1990) (“The
government’s failure, both during and after war, to warn of the potential health risks
of asbestos [on government operated ships] once it learned of them was a matter
susceptible to policy analysis and within the discretionary function exception.”)
(alteration supplied); In re Joint E. & S. Districts Asbestos Litigation, 891 F.2d 31,
38 (2d Cir. 1989) (“[W]e find that the government’s failure to adopt a safety program
to warn of asbestos-related dangers on board [government operated] ships in the
midst of World War II is covered by the discretionary function exception.”)
(alterations supplied); Lively v. United States, 870 F.2d 296, 298 (5th Cir. 1989)
(affirming the district court’s decision that the discretionary function doctrine
precluded liability to GSA’s decision “to proceed with a program [of stockpiling
asbestos] without warning of the hazards of the substance to which it was exposing
the public”) (alteration supplied); Gordon v. Lykes Brothers Steamship Co., Inc., 835
F.2d 96, 100 (5th Cir. 1988) (“The government’s decision not to establish a safety
program for seaman working with asbestos was a similar choice [protected by the
discretionary function doctrine].”) (alteration supplied). See also Morgen v. U.S.
Department of Navy, 323 F. App’x 515, 516-17 (9th Cir. 2009) (affirming a district
court’s application of the discretionary function doctrine to the Navy’s failure to warn
naval shipyard employees about the dangers of asbestos exposure).
35

Accordingly, this court holds that plaintiff has failed to produce evidence
showing that the discretionary function doctrine should not apply to bar her claim that
TVA failed to adequately warn her of the dangers of exposure to airborne asbestos
fibers carried into her home on the person of her husband or his work clothes. Thus,
TVA’s decision not to issue a warning to the spouses of TVA employees falls within
the scope of the discretionary function doctrine, and plaintiff’s failure to warn claim
is due to be dismissed.
C.

TVA’s Failure to Provide Appropriate Safety Measures and Protection,
Thereby Leading to Plaintiff’s Continued Exposure to Asbestos Through
the Laundering of Her Husband’s Work Clothes
Plaintiff also contends that TVA was obligated to comply with OSHA

regulations concerning asbestos exposure, as well as TVA’s internal asbestos
policies,68 but that TVA repeatedly violated both sets of standards.69 For those
reasons, plaintiff asserts that TVA’s enforcement of the OSHA regulations and its
own internal policies “involv[ed] day-to-day operations . . . not covered by official
immunity.”70 She also alleges that TVA acted negligently when implementing its
asbestos safety policies, which she argues is nondiscretionary conduct for which TVA

68

Doc. no. 1 (Complaint) ¶¶ 67(e), 69(b), (e); doc. no. 82 (Plaintiff’s Brief in Opposition to
Summary Judgment on Discretionary Function Grounds), at 29.
69

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
Function Grounds), at 14-20, 29.
70

Id. at 27-28 (alteration supplied).
36

should be held liable.71 In response, TVA asserts that the discretionary function
doctrine should apply, because decisions concerning safety levels for government
activities involve an exercise of discretion.72
TVA’s focus on its decision to set particular safety levels governing an
employee’s exposure to asbestos is too broad, because a governmental agency like
TVA has the discretion to adopt or not adopt a particular safety protocol. See, e.g.,
Gaubert, 499 U.S. at 323 (noting that “planning-level decisions establishing programs
are protected by the discretionary function exception, as is the promulgation of
regulations by which the agencies are to carry out the programs”); Dalehite v. United
States, 346 U.S. 15, 37-38 (1953), affirming In re Texas City Disaster Litigation, 197
F.2d 771 (5th Cir. 1952) (en banc) (holding that both the cabinet-level decision to
implement a fertilizer program and the decisions setting specific requirements for
manufacture of the fertilizer were discretionary). The proper inquiry is whether any
statute, regulation, or agency guideline specifically dictated a course of conduct that
TVA was obligated to follow. See Autery, 992 F.2d at 1527.
On the other hand, plaintiff’s focus is too narrow when she argues that the
discretionary function doctrine should not apply because the conduct at issue is

71

Id. at 28-29.

72

Doc. no. 70 (Defendant’s Brief in Support of Summary Judgment on Discretionary
Function Grounds), at 17.
37

“operational.” In support of that contention, plaintiff relies upon an Eleventh Circuit
case holding that the implementation of “safety regulations is a day-to day operation,”
and that “such operational acts are not discretionary . . . .” Andrews v. Benson, 809
F.2d 1537, 1542-43 (11th Cir. 1987), vacated by Andrews v. Benson, 817 F.2d 1471
(11th Cir. 1987), and reinstated by Andrews v. Benson, 845 F.2d 255 (11th Cir.
1988); see also Franks v. Bolden, 774 F.2d 1552, 1555 (11th Cir. 1985). The
Eleventh Circuit confronted similar arguments in a more recent case, however, and
observed that:
The Supreme Court squarely rejected this proposed distinction in
Gaubert, ruling that the Fifth Circuit “erred in holding that the
[discretionary function] exception does not reach decisions made at the
operational or management level.” Gaubert, 499 U.S. at [325], 111 S.
Ct. at 1275. “Discretionary conduct is not confined to the policy or
planning level.” Id.; see also Varig Airlines, 467 U.S. at 813, 104 S. Ct.
at 2764 (“[I]t is the nature of the conduct, rather than the status of the
actor, that governs whether the discretionary function exception applies
in a given case.”).
Autery, 992 F.2d at 1527-28 (alterations in original).
Therefore, the appropriate inquiry for this court is whether controlling statutes,
regulations, or TVA’s own, internal policies mandated that the Authority reduce and
monitor the exposure of its employees to airborne asbestos fibers in a specific
manner. See, e.g., Berkovitz,486 U.S. at 536 (stating that “the discretionary function
exception will not apply when a federal statute, regulation, or policy specifically
38

prescribes a course of action for an employee to follow”); Rosebush v. United States,
119 F.3d 438, 442 (6th Cir. 1997); Autery, 992 F.2d at 1528; Mays, 699 F. Supp. 2d
at 1011.
Plaintiff’s response to TVA’s motion for summary judgment alleges numerous
violations of OSHA regulations and internal TVA policies and procedures.73 In
response, TVA asserts that the factual underpinnings of plaintiff’s allegations “are
disputed, but . . . [the factual disputes] are not material to [the resolution of] the
narrow [legal] issues presented by TVA’s motion.”74
Furthermore, as previously noted, plaintiff also asserts that TVA acted
negligently in its implementation of such policies and, therefore, the discretionary
function doctrine should not apply.75 The Supreme Court was confronted with similar
contentions in the Indian Towing case, where the plaintiff sued the government for
damages allegedly caused by the Coast Guard’s negligent operation and maintenance
of a lighthouse. Indian Towing Co. v. United States , 350 U.S. 61, 62 (1955). The
Supreme Court held that, while the initial decision to provide and maintain a
lighthouse was a discretionary judgment, the failure to maintain that lighthouse in
73

Doc. no. 82 (Plaintiff’s Brief in Opposition of Summary Judgment on Discretionary
Function Grounds), at 14-20.
74

Doc. no. 103 (Defendant’s Reply Brief in Support of Summary Judgment on Discretionary
Function Grounds), at 1 (alterations supplied).
75

Doc. no. 82 (Plaintiff’s Brief in Opposition of Summary Judgment on Discretionary
Function Grounds), at 28-30.
39

proper working order was not such a decision, because it did not involve a
permissible exercise of policy judgment. Id. at 69. The Supreme Court depicted the
scope of the discretionary function doctrine in the following manner:
[T]he Coast Guard need not undertake the lighthouse service. But once
it exercised its discretion to operate a lighthouse . . . and engendered
reliance on the guidance afforded by the light, it was obligated to use
due care to make certain that the light was kept in working order . . . and
to repair the light or give warning that it was not functioning. If the
Coast Guard failed in its duty and damage was thereby caused to
petitioners, the United States is liable under the [Federal] Tort Claims
Act.
Id. See also, e.g., Caplan v. United States, 877 F.2d 1314, 1316 (6th Cir. 1989)
(noting that once the government established a policy of deforestation, it was
accountable for negligence in the implementation of such policy); In re Tennessee
Valley Authority Ash Spill Litigation, No. 3:09-CV-09, 2012 WL 3647704, at *52
(E.D. Tenn. Aug. 23, 2012) (“[O]nce a government agency makes a policy decision
protected by the discretionary function doctrine, the agency must then proceed with
care in the implementation of that decision) (citing Mays, 699 F. Supp. 2d at 1019)
(alteration supplied).
With those basic principles in mind, this court now will address the various
elements of plaintiff’s claim that TVA failed to provide appropriate safety measures
and protection, thereby leading to her exposure to airborne asbestos fibers carried into
her home on the person of her husband and his work clothes.
40

1.

Permissible exposure limits

Plaintiff alleges that TVA violated OSHA regulations establishing permissible
levels of exposure to airborne asbestos fibers.76 She argues that the TVA’s adoption
of Standard Practice 14.45 at the Browns Ferry facility on October 15, 1980,77 was
not in compliance with OSHA regulations, because that standard established an
exposure limit of 5 fibers/cc (i.e., per cubic centimeter), while OSHA regulations set
the permissible exposure level at 2 fibers/cc.78
As stated in Part II.C of this opinion, supra, Executive Order 12,196
specifically required federal agencies to comply with OSHA regulations. See 45 Fed.
Reg. 12,769 (Feb. 26, 1980). In 1980, the OSHA standard for permissible exposure
levels to asbestos was 2 fibers/cc. 29 C.F.R. § 1910.93a(b)(2) (1972), recodified as
29 C.F.R. § 1910.1001 (1975).
Accordingly, on the record presently before the court, and construing the facts
in the light most favorable to plaintiff, the non-moving party, the court finds that
TVA did violate OSHA regulations setting a mandatory, numeric limit for employees’
exposure to asbestos fibers. TVA’s failure to comply with the exposure limit
mandated by OSHA is not protected by the discretionary function doctrine, because
76

Id. at 14-20.

77

See the discussion in Part II.F.3, supra.

78

Id. at 14 (citing doc. no. 86-1 (Deposition of Christopher D. Jeter), at 97-98).
41

TVA’s implementation of its Standard Practice 14.45 was in direct violation of a
mandatory OSHA directive. Accordingly, summary judgment on this aspect of
plaintiff’s claim is due to be denied.
2.

Monitoring of employees’ exposure levels

OSHA and TVA each established standards that governed the means of
monitoring and determining the quantity of airborne asbestos fibers in a work
environment. Those standards were explicated in Parts II.E and F of this opinion,
supra, but are summarized below.
OSHA’s 1972 standards required “all determinations of airborne concentrations
of asbestos fibers [to] be made by the membrane filter method at 400-450x
(magnification) (4 millimeter objective) with phase contrast illumination.” 29 C.F.R.
§ 1910.93a(e) (1972), recodified as 29 C.F.R. § 1910.1001 (1975) (alteration
supplied). OSHA regulations also dictated that air monitoring occur within 6 months
of the initial publication of the regulatory standard, and repeated every six months
thereafter for exposed employees. 29 C.F.R. § 1910.93(f) (1972). Such samples were
to be collected on “membrane filters of 0.8 micrometer porossity mounted in an openface filter holder . . . .” Id. Each employer was required to maintain records of “any
personal or environmental monitoring required by this section” for a period of at least
three years. 29 C.F.R. § 1910.93(i) (1972).
42

TVA Hazard Control Standard 407 required at least semi-annual monitoring
of both the breathing zone of exposed employees, and of the work environment that
would “quantitatively determine airborne asbestos fiber concentration.”79
Additionally, Standard 407 required the maintenance of “records of personal
monitoring and environmental monitoring.”80
Plaintiff’s response to defendant’s motion for summary judgment alleges
several violations of the foregoing standards.81 For example, Jimmy Myhan, a coworker of plaintiff’s husband, testified during his deposition that he did not remember
participating in or observing air monitoring for asbestos.82 Further, plaintiff asserts
that TVA has not produced any evidence of air sampling at Browns Ferry prior to
October of 1979.83 Plaintiff has also provided evidence addressing the manner in
which such monitoring was conducted.

From 1974 to 1978, Browns Ferry

determined employee exposure concentrations through visual inspections by the
employee’s supervisor.84 There is no evidence that the supervisors were provided any

79

Doc. no. 68-1 (TVA Hazard Control Standard 407), at 5 (emphasis supplied).

80

Id. at 6.

81

See doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
Function Grounds), at 14-16.
82

Doc. no. 83-4 (Deposition of Jimmy Myhan), at 74.

83

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
Function Grounds), at 14 (citing doc no. 85-1 (Deposition of Christopher D. Jeter), at 58, 62; doc.
no. 91-2 (Spreadsheet of Air Sampling)).
84

Id. (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 80-81).
43

standards to guide their determinations.85

If the supervisor believed that the

employee’s exposure did not exceed the ceiling limit of 10 fibers/cc, then the
employee was not given special clothing or lockers.86
The record before the court shows that TVA conducted air monitoring of only
three employees in 1980, eight employees in 1981, and five in 1982, even though
TVA’s own policy required sampling of all exposed employees.87 Thus, plaintiff
asserts that, until at least the early 1980s, many employees at Browns Ferry were not
being monitored for exposure to airborne asbestos fibers in violation of the
regulations.88 Plaintiff also asserts that TVA has provided no proof that it conducted
air sampling of exposed employees every six months, or that the method of air
sampling mandated by OSHA was ever used at Browns Ferry.89
In determining whether TVA violated a mandatory statute, regulation, or
policy, the court must consider the time period from 1975 to the promulgation of
Executive Order 12,196 in 1980 separately from the time period following that
Executive Order (that is, 1980 to 1985).

85

Id. (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 97-98).

86

Id. at 15 (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 81, 96).

87

Id. (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 85, 86).

88

Id. (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 87).

89

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
Function Grounds), at 15-16 (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 100-01,
103, 121).
44

For the time period from 1975 to 1980, before Executive Order 12,196 made
OSHA regulations directly applicable to TVA, the Authority’s decision to adopt a
particular monitoring method is immune under the discretionary function doctrine.
Dalehite, 346 U.S. at 40-41 (holding that the decision to bag fertilizer at a particular
temperature was within the discretionary function exception); Johns, 843 F.2d at 467
(“[S]afety decisions represent an exercise of discretion giving rise to governmental
immunity.”) (alteration supplied). Thus, TVA’s initial determination as to how it
would monitor airborne concentrations of asbestos fibers in Hazard Control Standard
407 would be shielded from liability by the discretionary function exception.
Even so, plaintiff does not attack TVA’s initial policy decision underlying the
adoption of Hazard Control Standard 407. Instead, she challenges TVA’s failure to
follow either its own standard or OSHA requirements concerning the monitoring of
employees’ exposure levels.

Both regulations required TVA to monitor an

employee’s exposure level to asbestos, and to retain records of those exposure
levels.90 Therefore, this court finds that TVA violated mandatory monitoring
directives and, as such, is not entitled to protection from liability by the discretionary
function doctrine for such conduct during the period of 1975 to1980.
In the alternative, this court also finds that TVA’s decisions regarding the
90

OSHA regulations only required the maintenance of such records for a period of three
years. TVA Hazard Control Standard 407 did not contain a similar time limitation.
45

monitoring of airborne asbestos exposure levels were not grounded in policy
considerations and, therefore, protection under the discretionary function doctrine is
not warranted. Similar to the situation addressed by the Supreme Court in the Indian
Towing case, once TVA exercised its discretion to establish a procedure requiring biannual monitoring of the breathing area of exposed employees and working
environments that quantitatively determined the airborne asbestos concentration level,
it was obligated to implement such monitoring in a non-negligent manner. See
generally Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955). Plaintiff has
pointed to several ways in which TVA was negligent in carrying out the requirements
of its own Hazard Control Standard 407. For instance, plaintiff has presented
evidence showing that TVA did not conduct bi-annual inspections of all exposed
employees, and that plant supervisors were negligent in performing visual inspections
because they did not quantitatively determine the airborne asbestos concentration
level. While Hazard Control Standard 407 allowed room for discretion in how to
specifically measure the airborne concentration levels, a visual inspection by plant
supervisors must be deemed negligent, because such an inspection could only lead
to a subjective, qualitative, and not a quantitative, determination.
Further, the decision to not quantitatively monitor the concentration of airborne
asbestos fibers to which all employees were exposed cannot be construed to be based
46

on nuclear power production, the very purpose of Browns Ferry. See Gaubert, 499
U.S. at 325 n.7. Thus, this court cannot find, as a matter of law, that TVA’s decision
to not quantitatively monitor the concentration of airborne asbestos fibers to which
all employees were exposed was grounded in policy considerations. See Gaubert,
499 U.S. at 325; Mays, 499 F. Supp. 2d at 1021 (noting that “it would not constitute
a discretionary decision to decide whether to follow or act pursuant to [] policies and
procedures”) (alteration supplied). For those reasons, the court finds that TVA’s
actions in monitoring employees’ asbestos exposure levels from 1975 to 1980 are not
within the scope of the discretionary function doctrine.
Likewise, for the time period from 1980 through 1985, TVA was subject to all
OSHA regulations, including specific requirements as to which membrane filters
were to be used, and the frequency with which air samples had to be taken from
exposed employees. See 29 C.F.R. § 1910.93a (e)-(f) (1972), recodified as 29 C.F.R.
§ 1910.1001 (1975). Therefore, any decisions by TVA as to the monitoring of
exposure levels would not be grounded in policy considerations, and would not be the
type of conduct that Congress sought to protect. Gaubert, 499 U.S. at 322-23.
Rather, any such decisions would merely address the issue of whether to follow the
governing OSHA regulations and TVA internal policies. Mays, 499 F. Supp. 2d at
1021. As such, those decisions would not fall within the scope of the discretionary
47

function doctrine, and TVA is not shielded from liability on those claims.
3.

Protective equipment and clothing and locker rooms

Browns Ferry was subject to internal TVA policies during the period from
1975 to 1980, and the Plant also was subject to both internal TVA policies and OSHA
regulations during the period from 1980 through 1985.91 OSHA regulations required
respirators, special work clothing, changing rooms, and two clothes lockers for
employees whose exposures exceeded the prescribed limits.

29 C.F.R. §§

1910.93a(c), (d) (1972), recodified as 29 C.F.R. § 1910.1001 (1975). TVA also had
established numerous internal policies.

TVA Hazard Control Standard 407,

Paragraph 4.5.1.1(D) required the use of respirators “prior to determining the
airborne concentrations of asbestos in a work environment.”92

Additionally,

protective clothing was required for exposures exceeding the ceiling limit, and “for
exposures of undetermined concentrations until it [had] been proven by tests that the
activity [would] not produce concentrations above the ceiling limits.”93 Hazard
Control Standard 407 also contained requirements mandating that TVA provide
special clothing, changing rooms, and two separate lockers when employees were

91

See doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment), at 4-10.

92

Id. at 7; doc. no. 68-1 (TVA Hazard Control Standard 407), at 3-5 (emphasis supplied).

93

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment), at 7; doc. no. 68-1
(TVA Hazard Control Standard 407), at 3-5 (emphasis and alterations supplied).
48

exposed to asbestos concentrations exceeding the ceiling limit.94 TVA’s Division of
Nuclear Power promulgated a Safety and Hazard Control Manual in 1979 that
established the following standard:

“Each employee exposed to airborne

concentrations of asbestos shall be provided with two separate lockers. One locker
shall be used for street clothes and must not be contaminated with asbestos.”95
Plaintiff’s response to defendant’s motion for summary judgment alleges
numerous violations of the aforementioned policies. Jimmy Myhan, a laborer who
worked at Browns Ferry with plaintiff’s husband, testified in his deposition that
employees normally wore their street clothes to work, at work, and when they
returned home, unless the employee had worked in an area contaminated with
radiation.96 Plaintiff asserts that TVA has proffered no evidence showing that its
internal policies requiring the provision of protective clothing were ever enforced.97
Plaintiff further asserts that, if Browns Ferry was not providing two lockers to all
exposed employees as of 1979, that would constitute a violation of the policy

94

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment), at 7; doc. no. 68-1
(TVA Hazard Control Standard 407), at 5.
95

Doc. no. 86-4 (Tennessee Valley Authority Division of Nuclear Power Safety and Hazard
Control Manual), at ECF 18 (emphasis supplied); doc. no. 85-1 (Deposition of Christopher D. Jeter),
at 110-111.
96

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
Function Grounds), at 16 (citing doc. no. 83-4 (Deposition of Jimmy Myhan), at 70-71).
97

Id. (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 97).
49

contained in the Division of Nuclear Power Safety and Hazard Control Manual.98
Additionally, plaintiff claims that TVA failed to produce documentation showing it
followed its 1974 policy requiring protective clothing for employees exposed to
“undetermined concentrations” of asbestos.99
Despite the foregoing allegations, plaintiff has not met her burden under part
one of the Gaubert test. While she has pointed out that TVA proffered no evidence
of compliance with such standards, that is simply not enough to find as a matter of
law that TVA violated its mandatory internal procedures concerning protective
equipment and clothing and locker rooms. Therefore, TVA’s conduct as it pertains
to those policies must now be analyzed under the second part of the Gaubert test.
As explained above, once TVA exercised discretion in adopting certain
procedures regarding protective equipment, clothing, and locker rooms, it was
required to implement such procedures in a non-negligent manner. See Berkovitz,
486 U.S. at 538 n.3; Indian Towing Co., 350 U.S. at 69; Mays, 499 F. Supp. 2d at
1019-20. Similar to the policies and procedures analyzed in Part III.C.2, supra, the
decisions of whether to provide employees with respirators and protective clothing
when the prescribed limits were exceeded (or prior to determining the airborne

98

Id. (citing doc. no. 85-1 (Deposition of Christopher D. Jeter), at 110).

99

Id. at 17 (citing doc. no. 86-1 (Deposition of Christopher D. Jeter), at 34); see doc. no. 68-1
(TVA Hazard Control Standard 407), at 3-5.
50

concentration level) and whether to provide two separate locker rooms for each
exposed employee, are not decisions that involve the requisite exercise of discretion.
See Gaubert, 499 U.S. at 325; Mays, 499 F. Supp. 2d at 1021. Such decisions are
merely questions of whether to follow governing policies and procedures and, thus,
they are not appropriately grounded in policy considerations. For those reasons, the
court finds that the discretionary function doctrine will not preclude liability for such
decisions, and summary judgment is due to be denied on those claims.
4.

Medical examinations

Browns Ferry was subject to both OSHA and internal TVA policies mandating
annual medical examinations for all employees exposed to airborne asbestos fibers.
See 29 C.F.R. § 1910.93a(j)(3) (1972), recodified as 29 C.F.R. § 1910.1001 (1975);
doc. no. 68-1 (TVA Hazard Control Standard 407), at 6.
In addition, Paragraph 4.10.3 of TVA Hazard Control Standard 407 imposed
a mandatory duty to retain records of such examinations “for a period of 20 years.”100
Plaintiff focuses upon this record-retention requirement as a means of proving that
TVA violated the policies mandating annual medical examinations for employees
exposed to airborne asbestos fibers. She argues, based upon the fact that TVA could
produce records of only three medical exams during Mr. Bobo’s employment,101 the
100

Doc. no. 68-1 (TVA Hazard Control Standard 407), at 6.

101

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
51

Authority must have violated the policies mandating annual medical examinations
cited in the first paragraph of this subsection. That argument is weakened, however,
by Mr. Bobo’s deposition, during which he testified that, to the best of his memory,
he had a chest x-ray every year.102
The primary fact that would give rise to a cause of action for violation of the
policies cited in the first paragraph of this subsection would be evidence establishing
that TVA failed to conduct annual medical examinations for all employees exposed
to airborne asbestos fibers. The policy mandating retention of records of such
examinations is a clerical requirement that could serve as circumstantial evidence that
the primary requirement was, or was not, complied with. Here, however, plaintiff has
only shown that TVA did not produce evidence establishing its compliance with the
requirement to retain records of annual medical examinations; yet, Mr. Bobo’s own
deposition testimony indicates that the most important component of such an
examination (i.e., a chest x-ray) was conducted annually.

The evidence is

contradictory. For that reason, the court finds that the question of whether TVA
conducted medical examinations of all employees exposed to airborne asbestos fibers
during all of the years that plaintiff’s husband worked for the Authority presents a

Function Grounds), at 18 (citing doc. no. 83-3 (Deposition of Priscilla Carthen), at 71-73, ECF 36
(Exhibit 10)).
102

Doc. no. 83-2 (Deposition of James Bobo), at 60.
52

genuine issue of material fact.
Even so, plaintiff’s claim still must be analyzed under the second part of the
Gaubert test. As explained in Part III.A, supra, the discretionary function doctrine
shields from liability the discretionary decisions made by a governmental agency. See
Gaubert, 499 U.S. at 323-325; Mays, 699 F. Supp. 2d at 1016-17. The use of the
term “shall” in both the OSHA regulation and TVA’s Hazard Control Standard 407
clearly made the requirement to provide annual medical examinations to all
employees exposed to airborne concentrations of asbestos fibers mandatory, not
discretionary. Therefore, TVA’s decision as to whether it would comply with those
policies is not the type of decision due protection under the discretionary function
doctrine. See Gaubert, 499 U.S. at 324-25; Berkovitz, 486 U.S. at 537; Varig
Airlines, 467 U.S. at 814, Mays, 499 F. Supp. 2d at 1021.
The bottom line, however, is that the evidence of TVA’s compliance, or lack
of compliance, with that non-discretionary, mandatory requirement to conduct annual
medical examinations of all employees exposed to airborne asbestos fibers is
conflicting. Hence, summary judgment is not appropriate on this claim.
5.

Lack of training

Plaintiff presented evidence of only a single 1984 internal TVA memorandum
that discussed asbestos training requirements. The memorandum states that all
53

employees who could “reasonably be expected to be exposed above a TWA [i.e.,
‘Time-Weighted Average’] of 0.1 f/cc” must be identified and receive initial and
annual training.103
In support of her allegations that TVA failed to train its employees about the
hazards of asbestos exposure, plaintiff asserts that TVA has no documentation
indicating Mr. Bobo received any asbestos training.104 Additionally, Jimmy Myhan
testified in his deposition that he never received any asbestos training at Browns
Ferry.105 In both 1979 and 1982, OSHA conducted a review of TVA and noted that
additional employee training on the hazard control program should be provided.106
As with many of the alleged violations, the fact that TVA has not produced
documentation evincing compliance with a particular regulation or procedure does
not establish, as a matter of law, that TVA in fact failed to comply with that
requirement. Even though the OSHA report indicated that additional employee
training was warranted, that does not conclusively prove that TVA violated a
mandatory directive. Therefore, the court finds that plaintiff’s allegations must be

103

Doc. no. 82 (Plaintiff’s Brief in Opposition to Summary Judgment on Discretionary
Function Grounds), at 9 (citing doc. no. 90-3 (Memorandum by W.F. Willis), at 2) (alteration
supplied).
104

Id. at 19 (citing doc. no. 86-1 (Deposition of Christopher D. Jeter), at 115, 117; doc. no.
83-3 (Deposition of Priscilla Carthen), at 66).
105

Id. (citing doc. no. 83-4 (Deposition of Jimmy Myhan), at 73).

106

Id. at 20 (citing doc. no. 91-5 (1979 Evaluation Report), at 40-42).
54

analyzed under the second part of the Gaubert test.
Even though the 1984 internal memorandum provided for initial and annual
training of employees who could reasonably be expected to be exposed to asbestos
concentrations above a time-weighted average of 0.1 f/cc, it gave no guidance or
requirements for such training.107 Therefore, TVA enjoyed significant discretion as
to the implementation, scope, and contents of such training. Such decisions were
clearly susceptible to policy analysis. See Gaubert, 499 U.S. at 325; Cranford, 466
F.3d at 958; OSI, 285 F.3d at 950-51; Lewis v. City of St. Petersburg, 260 F.3d 1260,
1266 (11th Cir. 2001) (holding that the discretionary function doctrine applied to the
city’s decision as to how to train its police officers); Kelly v. United States, 241 F.3d
755, 755 (9th Cir. 2001) (finding that “[t]he extent and type of the Forest Service’s
flight training is a matter left to the agency’s discretion and is susceptible to policy
analysis”) (alteration supplied); Autery, 992 F.3d at 1530-31; Flynn v. United States,
902 F.2d 1524, 1531 (10th Cir. 1990) (“There being no fixed standards for training
. . . the conduct of the federal employees falls within the discretionary function of the
FTCA.”); Feyers v. United States, 749 F.2d 1222, 1227 (6th Cir. 1984) (holding that
the decision not to establish a safety training program for rail-yard workers was
within the discretionary function exception).

107

Id.
55

Accordingly, the court finds that TVA’s decisions concerning employee
asbestos training fall within the scope of, and are protected from liability by, the
discretionary function doctrine.
IV. CONCLUSIONS AND ORDERS
For the foregoing reasons, TVA’ first motion for summary judgment (doc. no.
69) is GRANTED in part and DENIED in part. The motion is GRANTED as to
plaintiff’s claims that TVA filed to warn her about the dangers of asbestos exposure
(Part III.B, supra), and, plaintiff’s claims that TVA failed to provide asbestos training
to its employees (Part III.C.5, supra). It is ORDERED that those claims be, and the
same hereby are, DISMISSED. The motion is DENIED as to plaintiff’s claims that
TVA: violated OSHA regulations concerning permissible levels of asbestos exposure
(Part III.C.1, supra); failed to follow mandatory directives governing the monitoring
of an employee’s exposure to asbestos (Part III.C.2, supra); failed to provide
protective equipment and clothing and locker rooms (Part III.C.3, supra); and, failed
to administer annual medical examinations to employees exposed to airborne asbestos
fibers (Part III.C.4, supra).
As noted at the beginning of this opinion, this court entered an order on
October 18, 2013, granting plaintiff’s motion to reconsider the previous denial of her

56

motion for leave to amend her complaint,108 and directing the Clerk to file plaintiff’s
“First Amended Complaint.”109 That amendment had the effect of expanding the
period of time during which plaintiff contends that she was exposed to airborne
asbestos fibers brought into her home on the person and clothing of her deceased
husband by a period of some twelve years. That amendment necessitated the entry
of another order on October 21, 2013, directing the parties to file an amended
scheduling order by November 12, 2013,110 to address the possibility that additional
discovery may be required before TVA’s second motion for summary judgment will
be ripe for decision.111 The parties are ORDERED to inform this court in their
proposed, amended scheduling order of not only the date on which they anticipate
that TVA’s second motion for summary judgment will be ripe for decision, but also
whether additional briefs in support of and opposition to that motion will be required.
DONE and ORDERED this 28th day of October, 2013.

______________________________
United States District Judge

108

See doc. no. 71 (Motion for Leave to Amend Complaint), doc. no. 75 (Memorandum
Opinion and Order denying motion to amend), doc. no. 77 (Motion for Reconsideration), and doc.
no. 170 (Order Granting Motion for Reconsideration).
109

See doc. no. 170, at 2. See also doc. no. 171 (First Amended Complaint).

110

See doc. no. 173.

111

See doc. no. 122 (TVA’s second Motion for Summary Judgment).
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