Adkisson et al v. Jacobs Engineering Group, Inc. (TV1)

Filing 39

MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 9/3/14. Associated Cases: 3:13-cv-00505-TAV-HBG, 3:13-cv-00666-TAV-HBG, 3:14-cv-00020-TAV-HBG (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GREG ADKISSON, et al.,

)
)
Plaintiffs,
)
)
v.
)
No.: 3:13-CV-505-TAV-HBG
)
JACOBS ENGINEERING GROUP, INC.,
)
)
Defendant.
)
________________________________________________________________________
KEVIN THOMPSON, et al.,

)
)
Plaintiffs,
)
)
v.
)
No.: 3:13-CV-666-TAV-HBG
)
JACOBS ENGINEERING GROUP, INC.,
)
)
Defendant.
)
________________________________________________________________________
JOE CUNNINGHAM, et al.,
Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

No.:

3:14-CV-20-TAV-HBG

MEMORANDUM OPINION
These three actions, which all relate to defendant Jacobs Engineering Group, Inc.’s
post-spill clean-up removal and recovery of fly ash at the Tennessee Valley Authority

(“TVA”) Kingston Fossil Fuel Plant (the “KIF Plant”) following the coal ash spill that
occurred when a containment dike at the KIF plant failed on December 22, 2008 (the
“ash spill”), have been consolidated by order of the Court [Doc. 35].1

Prior to

consolidation, defendant moved, in each case, to dismiss all of the claims by all the
plaintiffs pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the basis
of derivative discretionary function immunity. For the reasons that follow, the Court will
grant those motions and dismiss plaintiffs’ claims.
I.

Plaintiffs’ Lawsuits
In Case Number 3:13-CV-505-TAV-HBG, Adkisson v. Jacobs Engineering

Group, Inc., plaintiffs include individuals who allegedly “worked long hours per day in
close proximity with toxic fly ash constituents” and some of their spouses [Doc. 1 ¶ 61].
They make allegations that defendant did not monitor the fly ash in violation of federal
and state law, did not adequately train plaintiffs about the hazards associated with fly ash,
did not adequately monitor plaintiffs’ medical conditions, did not provide plaintiffs with
safety equipment, did not dispose of toxic substances properly, and did not admit that
plaintiffs had been exposed to hazardous substances, despite knowing the toxic nature of
fly ash [Id. ¶¶ 53–70]. Plaintiffs claim that they have suffered negative health impacts as
a result of defendant’s conduct, including eye problems, sinus problems, pulmonary
problems, heart problems, and other health-related problems [Id. ¶¶ 71–72]. On the basis

1

The Court refers to the docket entries in Adkisson v. Jacobs Engineering Group Inc.,
Case No. 3:13-CV-505-TAV-HBG, unless otherwise indicated.
2

of their allegations, they assert the following claims: outrageous conduct, battery,
negligence, negligence per se, intentional and/or reckless failure to warn, reckless
infliction of emotional distress, fraud, misrepresentation/fraudulent concealment, and
strict liability for ultrahazardous or abnormally dangerous activity [Id. ¶¶ 73–139].
Defendant has moved to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure [Doc. 10] and to strike part of plaintiffs’ response to that motion [Doc.
25].
In Case Number 3:13-CV-666, Thompson v. Jacobs Engineering Group, Inc.,
plaintiffs are Shaun Travis Smith, Kevin Thompson, and Kevin Thompson’s wife, Joy
Thompson [Case No. 3:13-CV-666 Doc. 1 ¶¶ 1–22]. Plaintiffs Shaun Travis Smith and
Kevin Thompson allegedly worked on the KIF site during TVA’s post-spill clean-up and
remediation efforts at and around the KIF plant [Id. ¶¶ 4, 15]. Plaintiffs make allegations
that defendant did not monitor the fly ash in violation of federal and state law, did not
adequately train plaintiffs about the hazards associated with fly ash, did not adequately
monitor plaintiffs’ medical conditions, did not provide plaintiffs with safety equipment,
did not dispose of toxic substances properly, and did not admit that plaintiffs had been
exposed to hazardous substances, despite knowing the toxic nature of fly ash [Id. ¶¶ 9–
19]. Plaintiffs have allegedly suffered negative health impacts as a result of defendant’s
conduct, including eye problems, sinus problems, pulmonary problems, heart problems,
and other health-related problems [Id. ¶ 23]. On the basis of these allegations, they assert

2

There are two paragraphs in the complaint identified as paragraph number two.
3

the following claims: outrageous conduct, battery, negligence, negligence per se,
intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud,
misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or
abnormally dangerous activity [Id. ¶¶ 24–90]. Defendant has moved to dismiss the action
pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure [Case No. 3:13-CV-666
Doc. 7] and pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Case No.
3:13-CV-666 Doc. 16]. Plaintiffs have filed two motions to amend [Case No. 3:13-CV666 Docs. 20, 29].3
In Case Number 3:14-CV-20, Cunningham v. Jacobs Engineering Group, Inc.,
plaintiffs are Joe Cunningham and his wife, Taylor Cunningham [Case No. 3:14-CV-20
Doc. 1 ¶¶ 2–3]. Plaintiff Joe Cunningham allegedly worked on the KIF site during
TVA’s post-spill clean-up and remediation efforts [Id. ¶ 5].

Plaintiffs claim Joe

Cunningham “unintentionally brought home toxins from fly ash that he was told [were]
safe” [Id.]. Plaintiffs make allegations that defendant did not monitor the fly ash in
violation of federal and state law, did not adequately train plaintiff Joe Cunningham
about the hazards associated with fly ash, did not adequately monitor plaintiff Joe
Cunningham’s medical conditions, did not provide plaintiff Joe Cunningham with safety
equipment, did not dispose of toxic substances properly, and did not admit that plaintiff
Joe Cunningham had been exposed to hazardous substances, despite knowing the toxic
nature of fly ash [Id. ¶¶ 12–21].
3

Plaintiff Joe Cunningham has allegedly suffered

Because of the Court’s findings related to Rule the 12(b)(1) motion, the Court does not
address defendant’s Rule 12(b)(5) motion.
4

negative health impacts as a result of defendant’s conduct, including eye problems, sinus
problems, pulmonary problems, heart problems, and other health-related problems [Id. ¶¶
22–23]. Plaintiff Taylor Cunningham had a miscarriage allegedly as a result of plaintiff
Joe Cunningham’s exposure to toxic substances and the carrying home of those
substances [Id. ¶ 24]. On the basis of these allegations, they assert the following claims:
outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless
failure

to

warn,

reckless

infliction

of

emotional

distress,

fraud,

misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or
abnormally dangerous activity [Id. ¶¶ 25–90]. Defendant has moved to dismiss the action
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Case No. 3:14-CV-20
Doc. 6].
II.

Standard of Review4
A motion to dismiss on the basis of discretionary function is appropriately made

under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Hatcher v. United States,
512 F. App’x 527, 528–29 (6th Cir. 2013). In consideration of a motion brought pursuant
to Rule 12(b)(1), a court may review extra-complaint evidence and resolve factual
disputes. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915–16 (6th Cir. 1986).
“Moreover, on the question of subject matter jurisdiction[,] the court is not limited to
jurisdictional allegations of the complaint but may properly consider whatever evidence
is submitted for the limited purpose of ascertaining whether subject matter jurisdiction
4

Plaintiffs do not contest defendant’s characterization of the standard of review [Doc.
17], with which the Court agrees.
5

exists.” Pryor Oil Co., Inc. v. United States, 299 F. Supp. 2d 804, 807 (E.D. Tenn.
2003) (citing Rogers, 798 F.2d at 915–16) (other citations omitted).
Because defendant’s motions are properly brought pursuant to Rule 12(b)(1), the
Court considers the affidavits and documents submitted in support and opposition of
dismissal. Plaintiffs ask the Court to allow discovery to further contest defendant’s
motions [See Doc. 16], but the Court finds that request unwarranted. When sovereign
immunity is an issue, the D.C. Circuit has noted that “jurisdictional discovery should be
carefully controlled and limited” “to avoid burdening a sovereign that proves to be
immune from suit.” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40
(D.C. Cir. 2000). Upon review of the parties’ submissions, and for reasons apparent from
the Court’s analysis regarding application of derivative discretionary function immunity
below, the Court does find that discovery would aid in determining whether derivative
discretionary function immunity applies here.5
III.

Background6
TVA is a corporate agency and instrumentality of the United States created by and

existing pursuant to the Tennessee Valley Authority Act of 1933 (the “TVA
5

Moreover, even if the parties supplement the record with affidavits and other proof, it
does not thereby convert the Rule 12(b)(1) motion into one for summary judgment under Rule
56. Rogers, 798 F.2d at 916. And to the extent the Court would even construe plaintiffs’ request
for additional discovery as one made pursuant to Rule 56(d), the Court would find that plaintiffs
have not met their burden of demonstrating why discovery is necessary. See Summers v. Leis,
368 F.3d 881, 887 (6th Cir. 2004) (stating that “[b]are allegations or vague assertions of the need
for discovery are not enough”).
6

The relevant background for each complaint is substantially similar and is primarily
taken from materials submitted by defendant, which, in large part, is uncontested by plaintiffs.
6

Act”). See 16 U.S.C. §§ 831 et seq.; see also Hill v. U.S. Dep’t of Labor, 65 F.3d 1331,
1333 (6th Cir. 1995). TVA was created by Congress “in the interest of the national
defense and for agricultural and industrial development, and to improve navigation in the
Tennessee River and to control the destructive flood waters in the Tennessee River and
Mississippi River Basins.” 16 U.S.C. § 831. Through amendments to the TVA Act,
Congress extended TVA’s purposes to “law enforcement . . . in the area of
jurisdiction,” id. § 831c-3(a), and “[t]o aid further the proper use, conservation, and
development of the natural resources of the Tennessee River drainage basin and of such
adjoining territory as may be related to or materially affected by the development
consequent to this chapter, and to provide for the general welfare of the citizens of said
areas . . . .” Id. § 831u; see also U.S. ex rel. Tenn. Valley Auth. v. Welch, 327 U.S. 546,
553–54 (1946). The TVA Act also specifically authorizes TVA “[t]o produce, distribute,
and sell electric power.” 16 U.S.C. § 831d(l); see also Memphis Power & Light Co. v.
City of Memphis, 112 S.W.2d 817, 822 (1937) (stating that “[t]he TVA is a public
instrumentality and holds the electric energy generated at its dams in trust for the people
of the whole country”). In addition, the TVA Act gives TVA the power to exercise the
right of eminent domain, to acquire real estate, and to take title to real estate in the name
of the United States to accomplish the purposes of the TVA Act, including “the
construction of dams, reservoirs, transmission lines, power houses, and other structures,
and navigation projects . . . .” 16 U.S.C. §§ 831c(h)–(i).

7

TVA owns, operates, and manages the KIF plant. Chesney v. Tenn. Valley Auth.,
782 F. Supp. 2d 570, 572 (E.D. Tenn. 2011). On December 22, 2008, one of the
containment dikes that retained a pond used to dispose of coal ash sludge produced at the
KIF plant failed. 782 F. Supp. 2d at 573. The burning of coal at the KIF plant’s coalfired electricity generation plant created the coal ash sludge. As a result of the dike
failure, approximately 5.4 million cubic yards of coal ash sludge spilled from the 84-acre
containment pond to an adjacent area of about 300 acres, consisting of primarily the
Watts Bar Reservoir, the Clinch and Emory Rivers, and government and privately owned
shoreline properties. Id.
Following the coal ash spill, TVA and the Environmental Protection Agency (the
“EPA”), responded pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. § 103 et seq., (“CERCLA”), and the
National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. pt. 300
(2008) (the “NCP”). See Mays v. Tenn. Valley Auth., 699 F. Supp. 2d 991, 998 (E.D.
Tenn. 2010). During the initial emergency response phase, and pursuant to CERCLA,
Executive Order No. 12,580, and the NCP, the EPA delegated its authority to TVA to
engage in coal ash removal actions. Id. (citing 42 U.S.C. §§ 9604(a)–(b); 42 U.S.C. §
9615 (authorizing the President to delegate duties and powers under CERCLA); 40
C.F.R. § 300.5). The EPA terminated the initial emergency response phase on January
11, 2009, and transferred lead agency authority to TVA for further clean up, removal, and
remediation actions. Id. Since this time, all coal ash response and removal actions have
8

been within TVA’s delegated authority under CERCLA and Executive Order No. 12,580.
Id.
On January 12, 2009, in a “coordinated oversight approach” adopted by the
Tennessee Department of Environment and Conservation (“TDEC”) and the EPA, TDEC
ordered TVA to comply with an order directing it to engage in various spill response and
remediation efforts, implement removal measures, assess all of TVA’s coal ash disposal
facilities, submit reports detailing and analyzing the causes of the dike failure at the KIF
plant, and submit a Corrective Action Plan (the “CAP”). The TDEC order directed TVA
as follows:
5. Within 45 days after the receipt of this Order, the Respondent
shall prepare and submit to the Department a Corrective Action Plan
(“CAP”). The CAP shall include:
A. a plan for the comprehensive assessment of soil, surface
water, and ground water; remediation of impacted media;
and, restoration of all natural resources damaged as a result of
the coal ash release;
B. a plan for monitoring the air and water in the area during the
cleanup process;
C. a plan to ensure that public and private water supplies are
protected from contamination and that alternative water
supplies are provided if contamination is detected,
D. a plan addressing both the short term and long term
management of coal ash at the Kingston Plant, including
remediation and stabilization of the failed ash waste cells,
proper management of the recovered ash, and a revised
closure plan for the Class II ash disposal facility; and,
E. a plan to address any health or safety hazards posed by the
ash to workers and the public.
...

9

7. Upon approval by the Department, the Respondent shall
implement the CAP according to the schedule approved by the
Department.
[Doc. 11-2 at 8–9].
Pursuant to a written contract with an effective date of February 6, 2009, TVA
engaged defendant to provide professional services associated with management of the
fly ash recovery project (the “Jacobs/TVA contract”) [Doc. 11-1 Ex. A].

The

Jacobs/TVA contract identifies as its purpose to provide “for project planning, oversight
and environmental services to assist TVA in the Kingston Dredge Cell Incident recovery
and remediation” and designates defendant as TVA’s “prime contractor providing project
planning, management and oversight to assist TVA in overall recovery and remediation
associated with this incident” [Id. at 2].
The Jacobs/TVA contract divides defendant’s scope of work and professional
consulting services to TVA into two phases [Id.]. The first phase (Phase 1) of the work
called for defendant to provide assistance to TVA in (1) developing the CAP ordered by
the TDEC, (2) reviewing and providing input on the Phase 1 dredging plan and
engineering the Phase 2 dredging plan, (3) defining the project management structure for
drainage management and ash recovery, and (4) reviewing TVA’s public relations and
community relations plans and developing/revising those plans [Id.].
On March 2, 2009, TVA, with assistance from defendant, submitted its proposed
CAP for the ash spill to TDEC [Doc. 11-2 at 15–87]. TVA’s CAP is organized into six
sections that set forth the removal and remediation plans for the ash spill [Id.]. They
10

include plans for Comprehensive Assessment [Id. at 36–56]; Environmental Monitoring
During Cleanup [Id. at 57–60]; Management of the Coal Ash [Id. at 68–77]; and Health
and Safety to address any health or safety hazards posed by the ash to workers and the
public [Id. at 78–84].
The second phase of defendant’s scope of work (Phase 2) is set out in Amendment
4 of the Jacobs/TVA contract [See Doc. 11-1 at 45–50]. Amendment 4 provides that
defendant is to develop and implement a Project Management Plan for TVA that will
include all services necessary for execution of the KIF Dredge Cell Incident Recovery
Program (the “Program”) [Id. at 49]. Defendant’s scope of work in generalized terms is
defined to include all facets of the Program, including project management with TVA
oversight, engineering, environmental, community, and construction management
services for all work associated with the Program [Id.]. Phase 2 also calls for defendant
to address within the Program all “monitoring, processing, remediation, removal, hauling,
and disposal of fly ash both on and off TVA property” [Id.].
TVA contracted with defendant to evaluate the potential hazards to human health
and safety associated with the work to be performed in execution of the ash recovery and
removal Program and then to “prepar[e] and submit[] for approval by TVA a written site
specific safety and health plan at least thirty (30) days prior to the start of the work under
the contract” [Doc. 11-1 at 28]. In conformance with its contractual obligations to TVA
and as expressly authorized by TVA in the Jacobs/TVA contract, defendant prepared and
provided to TVA for review and approval a comprehensive Site Wide Safety and Health
11

Plan (“SWSHP”) [Docs. 11-3, 11-4, 11-5]. The SWSHP was approved by the EPA and
TVA on June 30, 2009 [Id.]. The SWSHP has been revised at least five times since
originally published in March 2009 [Case No. 3:13-CV-666 Doc. 17-3 ¶ 7]. Each time
the SWSHP has been revised, it has been approved and adopted by TVA and the EPA
[Id.].
The SWSHP was written to apply to all site general construction activities as well
as CERCLA remediation activities in accordance with EPA’s Standard Operating Safety
Guide and 29 C.F.R. § 1910.120 concerning hazardous waste operations and emergency
response [Id.]. The SWSHP addresses both site safety hazards and worker health hazards
and compliance with TVA and OSHA standards as found in 29 C.F.R. Part 1910 [Id. ¶ 8].
The SWSHP describes the potential hazards at the site, the health hazard monitoring at
the site, and personal protective equipment required for the protection of workers at the
site [Id.; see also Case No. 3:13-CV-666 Docs. 17-4, 17-5, 17-6, 17-7]. The SWSHP also
addresses work zones, site control, personal hygiene, medical surveillance, training,
hazard communication, and emergency response [Id.]. The SWSHP provides the safety
and health framework for site-specific plans and health and safety procedures, including
job-specific hazard analysis, meetings, logs, reports, and recordkeeping, including the
requirement that all site workers require forty-hour initial training and eight-hour annual
refresher training, as well as a site specific safety orientation, which outlines site hazards
and controls established to mitigate those hazards [Id.].

12

The SWSHP also identifies various hazards found on site. Section 4.2.1 of the
SWSHP notes that fly ash from coal combustion will be the principal material to be
processed and handled during the project [Case No. 3:12-CV-666 Doc. 17-4 at 26].
Regulations for airborne contaminants (respirable dust, total dust, crystalline silica, and
metals) and their action levels and permissible site exposure limits were identified and
incorporated into the SWSHP [Case No. 3:12-CV-666 Doc. 17-3 ¶ 9]. The OSHA
Permissible Exposure Limits (“PEL”), the Tennessee OSHA (“TOSHA”) PEL, the
NIOSH Recommended Exposure Limits (“REL”) and the American Conference of
Governmental Industrial Hygienists (“ACGIH”) Threshold Limit Values (“TLV”) were
all evaluated for use at the site [Id.]. The PEL is that limit assigned for a constituent by
OSHA whether it is federal or state OSHA [Id.]. Thus, the PEL is the regulatory limit
[Id.].
In Revisions 3 of the SWSHP approved and adopted by TVA and the EPA on June
30, 2009 (and each of the SWSHPs approved and adopted by TVA and the EPA
thereafter), the site adopted the more conservative of the applicable OSHA or TOSHA
PEL as the Occupational Exposure Limit (“OEL”), except in the case of quartz silica
where the REL of 0.05mg/m3 was utilized as the site OEL [Id.]. This NIOSH REL of
0.05mg/m3 is 1/2 the TOSHA PEL of 0.1mg/m3 [Id.]. Table 4-1 of the SWSHP sets
forth in more detail the Fly Ash Constituent Information including the constituent’s site
action level and site exposure limits [Id.; Case No. 3:13-CV-666 Doc. 17-4 at 27]. As
referenced in Table 4-1 of the SWSHP, in addition to setting Site OELs for fly ash
13

constituents at the more conservative of the PEL standards set by OSHA or TOSHA,
defendant set the site action level for fly ash constituents at fifty percent of the applicable
PEL [Id.].
IH monitoring at the site has been performed by two contract partners to TVA
[Case No. 3:13-CV-5666 Doc. 17-3 ¶ 10]. From December 30, 2008, through May of
2010, EnSafe, Inc. (“EnSafe”) performed the IH monitoring pursuant to its own IH
Monitoring Plan [Id.]. From July of 2010 to the present, defendant has performed the IH
monitoring utilizing and following the protocols for IH monitoring as set forth in the
SWSHP [Id.]. Protocols and processes for IH monitoring are set forth in Appendix K of
the October 2010 SWSHP (Revision 5) [Case No. 3:13-CV-666 Doc. 17-7]. Defendant’s
IH monitoring has undergone numerous internal and third-party reviews and is performed
in accordance with the Jacobs/TVA contract and the SWSHP [Case No. 3:13-CV-666
Doc. 17-3 ¶ 10].
Appendix K in the October 2010 SWSHP (Revision 5) sets forth the expectations
for the ongoing IH monitoring [Id. ¶ 14; Case No. 3:13-CV-666 Doc. 17-7]. These
expectations and procedures have been followed by defendant’s personnel [Case No.
3:13-CV-666 Doc. 17-3 ¶ 14]. IH monitoring is ongoing, and has been since the initial
coal ash spill occurred [Id.]. According to defendant, data collected to date by EnSafe
and defendant, for personnel exposure, consistently show that regulatory standards as set
forth in the SWSHP have not been exceeded, and personnel exposure to trace elements in
the ash has been below any established action limits as set forth in Table 4-1 of the
14

SWSHP [Id.]. The results of IH monitoring from both EnSafe and defendant indicate the
same results [Id.].
Section 8.0 and Appendix I of the SWSHP (Revisions 3–6) set forth the site
procedures and protocols for site control, work zones, and personal hygiene [Case No.
3:14-CV-20 Doc. 7-5 ¶¶ 17–19]. These procedures include the deployment of hand
washing stations, boot cleaning locations and other decontamination activities as
warranted to minimize the dispersion of fly ash to personal vehicles, worker residences
and support [Id.]. Section 8.0 further provides that workers who are exposed to fly ash
and dust at levels above the PEL may be expected to wear coveralls and dedicated boots
to avoid transferring materials offsite or to their personal vehicles [Id.].
In connection with these procedures, the site was divided into zones that delineate
the boundaries of the ash spill [Id.]. The Exclusion Zones (“EZ”) would be where the fly
ash was handled, stockpiled, or otherwise actively manipulated [Id.]. The Contamination
Reduction Zones (“CRZ”) would be areas where personnel/equipment cleaning and/or
decontamination would take place as you exit the EZ [Id.]. The Support Zones would be
outside of the EZ and CRZ, and include office areas, equipment storage areas, public
roads, or other areas not meeting the definition of an EZ or CRZ [Id.].
Pursuant to the the SWSHP, personal protective equipment (“PPE”) requirements
for site access [Doc. 11-3 at 36–37] include standard work clothing of long pants and
shirt with sleeves, steel toe work boots, safety glasses with side shields, hard hat, and
high visibility reflective vest [Case No. 3:13-CV-666 Doc. 17-3 ¶ 17]. Gloves are
15

required for hands on work [Id.]. Section 6.0 of the SWSHP describes the methods for
selection of PPE on site as well as the risk based process for determining the appropriate
PPE that will be protective of the worker without creating a new hazard [Id.].
Defendant’s safety and management personnel have prescribed the use of respirators for
workers within a particular similar exposure group (“SEG”) when data from IH sampling
for that SEG is elevated and cannot be controlled with engineering controls, work
practices, or administrative methods [Id. ¶ 18].
IV.

Preliminary Procedural Issues
While the issue of whether derivative discretionary function immunity applies

across the board, the Court must examine some preliminary matters before addressing
whether defendant is entitled to that immunity. They include the motion to strike filed by
defendant in Adkisson and the motions to amend filed by plaintiffs in Thompson.7
With respect to the motion to strike, the Court finds it is moot in light of the
Court’s analysis below, supra Section V.

Regarding motions to amend, the Court

recognizes that “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).8 “The court should freely give
leave,” however, “when justice so requires.” Id. Leave is appropriate “[i]n the absence
of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
7

Granting a motion to dismiss before addressing a pending motion to amend can be an
abuse of discretion. Thompson v. Superior Fireplace Co., 931 F.2d 372, 374 (6th Cir. 1991).
8

The Court finds that Federal Rule of Civil Procedure 15(a)(1) has no application here.
16

opposing party by virtue of allowance of the amendment, [or] futility of the amendment.”
Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)); see also Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625,
633 (6th Cir. 2009). “Amendment of a complaint is futile when the proposed amendment
would not permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cnty.,
408 F.3d 803, 807 (6th Cir. 2005) (citing Neighborhood Dev. Corp. v. Advisory Council
on Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980)).
The Court finds no indication of undue delay, bad faith, dilatory motive, or a
repeated failure to cure deficiencies by amendments previously allowed on the part of the
Thompson plaintiffs, and the Court does not find that undue prejudice to defendant will
result from allowing the amendment. Thus, absent futility, granting leave to amend is
appropriate.
In the motions to amend, the Thompson plaintiffs seek to add two claims for relief:
TENTH CLAIM FOR RELIEF:
90 (a) Due to defendant’s negligent, reckless and intentional failure
to follow the Site Wide Safety and Health Plan (“SWSHP”) relative
to toxic substance monitoring of fly ash substances and the duty to
provide appropriate safety equipment such as respirators to plaintiff,
Kevin Thompson, and plaintiff, Shawn Travis Smith, defendant
intentionally, negligently and recklessly thereby exposed the
plaintiffs to toxic levels of contaminants which has caused
permanent injury.
ELEVENTH CLAIM FOR RELIEF:
90 (b) Retaliatory discharge. The plaintiffs were terminated as the
sole cause of their termination or alternatively as a substantially
contributing factor due to their exercise of statutory rights granted
17

pursuant to the Workers’ Compensation Act of the State of
Tennessee.
90 (c) After reporting Workers’ Compensation claims and safety
concerns, the plaintiffs were subjected to retaliation and disparaging
treatment which resulted in the termination of their employment. For
instance, when plaintiffs and other claimants reported that they had
concerns regarding work-related low testosterone levels, field
manager Duane Rushing, third in command of the Site, reported that
he “would take care of the workers’ wives if they were unable.” The
plaintiffs likewise were followed closely when exercising their
duties in retaliation for seeking workers’ compensation benefits and
then were terminated.
[Case No. 3:13-CV-666 Doc. 29]. For reasons discussed later in this memorandum
opinion, the Court finds that the tenth claim for relief is futile, see supra Section V. And
the Court finds the eleventh claim for relief futile because the Thompson plaintiffs have
not alleged that they were employed by defendant.
To state a claim for workers’ compensation retaliation in Tennessee, plaintiffs
must plead four elements: (1) they were employed by defendant when injured; (2) they
made a claim against defendant for workers’ compensation benefits; (3) defendant
“terminated [their] employment; and (4) the claim for workers’ compensation benefits
was a substantial factor in [defendant’s] motivation to terminate [their] employment.”
Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993), overruled on
other grounds by Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010). As
alleged in the Thompson plaintiffs’ complaint, plaintiffs Kevin Thompson and Shaun
Smith “worked for other employers at KIF” [Case No. 3:13-CV-666 Doc. 1 ¶¶ 6, 25, 28,
32, and 43]. Accordingly, an essential element of plaintiffs’ proposed claim for workers
18

compensation retaliation is absent. For this reason alone, plaintiffs’ proposed claim for
relief would not survive a motion to dismiss under Rule 12(b)(6).
V.

Derivative Discretionary Function Immunity Analysis9
In Mays v. Tennessee Valley Authority, the Court held that while TVA may be

liable to plaintiffs in tort through the “sue and be sued” clause of the TVA Act, the
discretionary function doctrine insulates TVA from liability if the conduct challenged by
a plaintiff is discretionary conduct grounded in considerations of public policy and
involves the permissible exercise of policy judgment. 699 F. Supp. 2d at 1004–11, 1016,
1019, 1022. Relevant to this case, the Court also determined that the discretionary
function applies to TVA’s coal ash removal and remediation conduct following the ash
spill. Id. at 1022–23. Subsequently, the Court issued a decision in Chesney v. Tennessee
Valley Authority, in which it applied the derivative sovereign immunity doctrine of
Yearsley v. W. A. Ross Construction Co., 309 U.S. 18 (1940), to claims against two
professional engineering contractors that provided engineering consultant services and
advice to TVA. Defendants urge the Court to find defendant is likewise entitled to the
benefit of derivative discretionary function immunity.
9

The Court recognizes that in determining whether discretionary function immunity
applies, courts engage in a two-step analysis. The first step involves a determination of “whether
the challenged act or omission violated a mandatory regulation or policy that allowed no
judgment or choice.” Rosebush v. United States, 119 F.3d 438, 441 (6th Cir. 1997). The second
step involves a determination of “whether the conduct is ‘of the kind that the discretionary
function exception was designed to shield.’” Id. (quoting United States v. Gaubert, 499 U.S.
315, 322–23 (1991)). Given the nature of the allegations, the parties’ briefs, and the Court’s
previous decisions related to the ash spill, the Court unconventionally begins with the second
step.
19

For a government contractor to qualify for derivative discretionary function
immunity, “the authority to carry out the project [must have been] validly conferred and .
. . within the constitutional power of Congress.” 782 F. Supp. 2d at 582 (citations
omitted). “A government contractor purporting to act on the government’s behalf will be
held liable, however, when the grounds for liability are that the contractor either
exceeded his or her authority or that the authority was not validly conferred.” Id. To put
it another way, “a contractor will qualify for derivative sovereign immunity only if the
contractor executed the will of the government and did not exceed its authority.” Id.10
None of the allegations of any of the complaints alleges that defendant exceeded
any scope of authority granted to it by TVA, nor that any authority TVA granted to
defendant was not validly conferred. And there are no allegations that TVA lacked the
authority to award the contract to defendant, that defendant deviated from the scope of
10

The Court finds that all of plaintiffs’ claims are subject to dismissal if the doctrine of
derivative discretionary function immunity applies. It appears that the doctrine applies to all
types of state tort-law claims, including those where state law would classify the situation as
involving inherently dangerous activities, non-delegable duties, negligence per se, or purposeful
conduct, and plaintiffs have not pointed the Court to any contrary authority. See, e.g.,
Myslakowski v. United States, 806 F.2d 94, 97–99 (6th Cir. 1986) (reversing district court
judgment against the government in a wrongful death case and holding that the Postal Service’s
decision to sell vehicles with a dangerous rollover propensity to the public without any warning
of the danger was protected by the discretionary function doctrine “whether purposeful or
negligent”); Jackson v. United States, 77 F. Supp. 2d 709, 714 (D. Md. 1999) (“The Court holds
that a FTCA plaintiff must first overcome the discretionary function ‘hurdle’ before the Court
will consider intentional tort claims under § 2680(h).”); Totten v. United States, 618 F. Supp.
951, 954 (E.D. Tenn. 1985) (holding that discretionary function exception was applicable to
wrongful death of a worker performing cleanup of ultrahazardous material on government
premises, even though controlling military regulations were not followed, because, “while this
may be evidence of negligence per se, the discretionary function exception . . . protects the
United States from liability even when negligence can be proved”), aff’d, 806 F.2d 698 (6th Cir.
1986).
20

that contract, or that TVA refused to accept defendant’s work. Under Ackerson v. Bean
Dredging, LLC, 589 F.3d 196 (5th Cir. 2009), these omissions are problematic for
plaintiffs and the Court could dismiss on this basis.
Yet, upon review of evidence in the record, the Court finds that the derivative
discretionary function immunity doctrine applies nonetheless. While plaintiffs frame
their allegations against defendant in terms of a negligent, willful, and intentional failure
to exercise due care with regard to warning and protecting plaintiffs from exposure to
alleged hazardous materials and a negligent, willful, and intentional failure to advocate,
implement, or recommend different or “safer” coal ash clean-up and disposal policies and
procedures, fly ash sampling, and air and medical monitoring methods, this Court has
previously held that “such allegations clearly challenge the policy decisions by TVA that
are protected by the discretionary function doctrine.” Chesney, 782 F. Supp. 2d at 585
(addressing allegations that contractor defendants failed to exercise due care, follow
engineering best practices, and advocate or recommend different or “safer” manners of
design, redesign, modifications, fixes, and coal ash disposal methods).

Concerning

removal and remediation efforts of the ash spill, the Court has stated:
[T]he Court notes that such activities involve considerations of
where and how to remove the coal ash, the specific cleanup methods
to be used at certain properties, and the interactions and
communications of TVA, the EPA, and TDEC with one another and
the surrounding communities regarding removal, remediation, and
relief efforts.
Id. at 1022 (citations omitted).

Moreover, this Court has recognized that TVA is

conducting its post-spill conduct pursuant to CERCLA and the NCP subpart involving
21

hazardous substances. Id. (citation omitted). The NCP subpart expressly recognizes that
“[a]ctivities by the federal and state governments in implementing this subpart are
discretionary governmental functions.” Id. Thus, because any decisions regarding what
rules and procedures would govern the safety of the site workers is a component of
TVA’s decisions about post-spill remediation activities, the Court finds that derivative
discretionary function immunity applies with respect to plaintiff’s claims.
Indeed, TVA tasked defendant to perform a specific discretionary function.
Among other things, defendant was asked to (1) develop a SWSHP for the benefit of
TVA and (2) manage that plan, with TVA oversight, during the post-spill fly ash cleanup, removal, and remediation process.

Plaintiffs do not dispute that TVA had the

ultimate authority to make final policy determinations concerning the safety plan and the
manner in which that plan would be applied to the workers performing the clean-up,
remediation, and disposal operation at the KIF plant. And the Court notes the SWSHP,
and all revisions thereto, prepared by defendant was approved by both TVA and the EPA
before going into effect. Moreover, the SWSHP includes determinations and procedures
for handling the fly ash, air monitoring, medical monitoring, training, and the use of PPE,
determinations that are the very matters plaintiffs now contest. Thus, it seems, plaintiffs’
challenge is essentially a challenge to the plan itself.
In further support of the Court’s finding that derivative discretionary function
immunity applies here, the Court notes plaintiffs’ allegations focus on defendant’s
response to what they contend was a known hazard to defendant as well as defendant’s
22

decisions about whether to warn of dangerous conditions and whether to implement
safety policies or measures to protect plaintiffs and other members of the public. When
faced with analogous allegations, the Sixth Circuit has applied the discretionary function
doctrine to the challenged conduct of the federal agency. In Rosebush v. United States,
119 F.3d 438, 443 (6th Cir. 1997), the court held the discretionary function exception
precluded claims for serious personal injuries based upon Forest Service decisions about
campground operation and management related to having open fire pits, the design of the
pits, whether to enclose the pits with railings, and whether to warn of the dangers of such
fire pits. See also Rich v. United States, 119 F.3d 447, 451 (6th Cir. 1997) (holding that
decisions regarding whether and how to make federal lands and facilities safe for visitors
are protected by the discretionary function doctrine); Lockett v. United States, 938 F.2d
630, 639 (6th Cir. 1991) (holding that decisions concerning the proper response to
hazards is a category of decisions protected from tort liability by the discretionary
function doctrine). Accord Sharp v. United States, 401 F.3d 440, 443–48 (6th Cir. 2005)
(holding that the discretionary function exception precluded a wrongful death case based
on Forest Service decisions about the operation and management of Huron National
Forest relating to hours of operation, lighting conditions, and law enforcement staffing);
Edwards v. Tenn. Valley Auth., 255 F.3d 318, 324–25 (6th Cir. 2001) (holding that the
discretionary function doctrine precluded a wrongful death case based on TVA’s
decisions about the operation and management of the Fort Loudoun Hydroelectric
reservation related to shoreline maintenance, safety warnings, and hydroelectric
23

generating operations); Reetz v. United States, 224 F.3d 794, 797 (6th Cir. 2000) (holding
that the discretionary function exception precluded claims for serious personal injuries
based on Forest Service decisions about the operation and management of trails and roads
in the Manistee National Forest).
Thus, the Court finds that plaintiffs’ challenges are of the kind that the
discretionary function exception was designed to shield, and pursuant to Yearsley and
Chesney, the immunity that would be afforded to TVA shall extend to defendant. Accord
Daigle v. Shell Oil Co., 972 F.2d 1527, 1537–43 (10th Cir. 1992) (holding that
discretionary function exception applied to decisions on how to clean up hazardous waste
site).
That does not end the inquiry, though. Plaintiffs argue that defendant violated
several mandatory directives, thus precluding it from taking advantage of the immunity,
including directives set out in regulations, the Jacobs/TVA contract, the SWSHP, and
defendant’s website.
Regulations.

Plaintiffs assert that 29 C.F.R. § 1910.134(a)(2), 29 C.F.R. §

1910.1018, and 29 C.F.R. § 126.10311 are mandatory regulations incorporated into the
Jacobs/TVA contract that allow for no discretion on the part of defendant regarding

11

Plaintiffs cite to 29 C.F.R. § 126.103; however, this regulation does not seem to exist.
The correct citation appears to be 29 C.F.R. § 1926.103. That section states that “[t]he
requirements applicable to construction work under this section are identical to those set forth at
29 CFR 1910.134 of this chapter.” Accordingly, the Court’s analysis regarding 29 C.F.R. §
1910.134(a)(2) applies with regard to 29 C.F.R. § 1926.103.
24

respiratory protection for site workers. And according to plaintiffs, defendant failed to
provide plaintiffs with respirators as mandated by these provisions.
Section 1910.134(a)(2), which falls within the Occupational Safety and Health Act
of 1970 (“OSHA”) regulations, provides:
(2) A respirator shall be provided to each employee when such
equipment is necessary to protect the health of such employee. The
employer shall provide the respirators which are applicable and
suitable for the purpose intended. The employer shall be responsible
for the establishment and maintenance of a respiratory protection
program, which shall include the requirements outlined in paragraph
(c) of this section. The program shall cover each employee required
by this section to use a respirator.
29 C.F.R. § 1910.134(a)(2). On its face, this regulation dictates that a respirator shall be
provided when a certain event occurs; that is, when a respirator is “necessary to protect
the health of [an] employee.” Id. The Court thus looks to the OSHA regulations to
determine whether use of a respirator at the site was necessary.
Looking at Part 1910 of Title 29 of the Code of Federal Regulations, the Court
notes that it “contains occupational safety and health standards which have been found to
be national consensus standards or established Federal standards.”
1910.1(b).12

29 C.F.R. §

Section 1910.1000 sets forth the PEL for employee exposure to air

contaminants, including those fly ash constituents identified by defendant in the SWSHP
and by plaintiffs in the complaints. “An employee’s exposure to any substance listed in
Tables Z-1, Z-2, or Z-3 of [section 1910.1000] shall be limited in accordance with the
12

“Standard” includes that “which requires conditions, or the adoption or use of one or
more practices, means, methods, operations, or processes, reasonably necessary or appropriate to
provide safe or healthful employment and places of employment.” 29 C.F.R. § 1910.2(f).
25

requirements of the following paragraphs of [section 1910.1000].”

29 C.F.R. §

1910.1000. In complying with this provision, the regulation directs that “administrative
or engineering controls must first be determined and implemented whenever feasible.”
29 C.F.R. § 1910.1000(e). The regulation further provides:
When such controls are not feasible to achieve full compliance,
protective equipment or any other protective measures shall be used
to keep the exposure of employees to air contaminants within the
limits prescribed in this section. Any equipment and/or technical
measures used for this purpose must be approved for each particular
use by a competent industrial hygienist or other technically qualified
person. Whenever respirators are used, their use shall comply with
1910.134.
Id. (emphasis added).
Section 1910.120, which addresses hazardous waste operations and emergency
response, governs the KIF site [See Doc. 11-3 at 6]. It provides that “[e]ngineering
controls, work practices, personal protective equipment, or a combination of these shall
be implemented in accordance with [section 1910.120(g)] to protect employees from
exposure to hazardous substances and safety and health hazards.”

29 C.F.R. §

1910.120(g) (emphasis added). Section 1910.120(g) further provides:
(1) Engineering controls, work practices and PPE for substances
regulated in subparts G and Z.
(i) Engineering controls and work practices shall be instituted to
reduce and maintain employee exposure to or below the permissible
exposure limits for substances regulated by 29 CFR part 1910, to
the extent required by subpart Z, except to the extent that such
controls and practices are not feasible.
Note to paragraph (g)(1)(i): Engineering controls which may be
feasible include the use of pressurized cabs or control booths on
26

equipment, and/or the use of remotely operated material handling
equipment. Work practices which may be feasible are removing all
non-essential employees from potential exposure during opening of
drums, wetting down dusty operations and locating employees
upwind of possible hazards.
(ii) Whenever engineering controls and work practices are not
feasible or not required, any reasonable combination of engineering
controls, work practices and PPE shall be used to reduce and
maintain employee exposures to or below the permissible exposure
limits or dose limits for substances regulated by 29 CFR part 1910,
subpart Z.
...
(2) Engineering controls, work practices, and PPE for substances
not regulated in subparts G and Z. An appropriate combination of
engineering controls, work practices and personal protective
equipment shall be used to reduce and maintain employee exposure
to or below published exposure levels for hazardous substances and
health hazards not regulated by 29 CFR part 1910, subparts G and
Z. The employer may use the published literature and SDS as a
guide in making the employer’s determination as to what level of
protection the employer believes is appropriate for hazardous
substances and health hazards for which there is no permissible
exposure limit or published exposure limit.
Thus, section 1910.120(g) contemplates using engineering controls and work practices to
reduce exposure prior to using PPE.
To the extent an employer elects to use PPE, section 1910.120(g) provides that
PPE “shall be selected and used which will protect employees from the hazards and
potential hazards they are likely to encounter as identified during the site characterization
and analysis.”

29 C.F.R. § 1910.120(g)(3).

PPE “selection shall be based on an

evaluation of the performance characteristics of the PPE relative to the requirements and
limitations of the site, the task-specific conditions and duration, and the hazards and
27

potential hazards identified at the site.” Id. And “[t]he level of protection provided by
PPE selection shall be increased when additional information on site conditions indicates
that increased protection is necessary to reduce employee exposures below permissible
exposure limits and published exposure levels for hazardous substances and health
hazards.” Id. Finally, PPE “shall be selected and used to meet the requirements of 29
CFR part 1910, subpart I, and additional requirements specified in this section.” Id.
Subpart I to Part 1910 sets forth the general guidelines for PPE, including
respirators.

Under section 1910.132, employers are to “assess the workplace to

determine if hazards are present, or are likely to be present, which necessitate the use of
[PPE].” 29 C.F.R. § 1910.132(d). The employer then may “[s]elect and have each
affected employee use, the types of PPE that will protect the affected employee from the
hazards identified in the hazard assessment.” Id. Thus, to the extent a hazard is present,
the employer is afforded discretion in selecting the types of PPE that will protect
employees from the hazard.
With this background in mind, the Court returns to the regulation plaintiffs cite as
setting forth a mandatory directive. In full, the portion of the regulation plaintiffs rely
upon, which is within Subpart I to Part 1910, provides:
(a) Permissible practice.
(1) In the control of those occupational diseases caused by breathing
air contaminated with harmful dusts, fogs, fumes, mists, gases,
smokes, sprays, or vapors, the primary objective shall be to prevent
atmospheric contamination. This shall be accomplished as far as
feasible by accepted engineering control measures (for example,
enclosure or confinement of the operation, general and local
28

ventilation, and substitution of less toxic materials). When effective
engineering controls are not feasible, or while they are being
instituted, appropriate respirators shall be used pursuant to this
section.
(2) A respirator shall be provided to each employee when such
equipment is necessary to protect the health of such employee. The
employer shall provide the respirators which are applicable and
suitable for the purpose intended. The employer shall be responsible
for the establishment and maintenance of a respiratory protection
program, which shall include the requirements outlined in paragraph
(c) of this section. The program shall cover each employee required
by this section to use a respirator.
29 C.F.R. § 1910.134(a). Upon review of the entire regulatory scheme, the Court finds
that this regulation does not mandate a specific course of conduct (i.e., providing or
allowing employees to wear respirators) as plaintiffs argue.

Only if “accepted

engineering control measures” cannot prevent atmospheric contamination is there a
requirement to provide respirators. Here, plaintiffs have not asserted that there were any
impermissible exposures that lead to atmospheric contamination, and even if there were,
that effective engineering control measures were not feasible to combat the exposure.
Indeed, evidence submitted by defendant indicates that exposure levels have been below
any established action limits set forth in the SWSHP [Case No. 3:13-CV-666 Doc. 17-3 ¶
14].
Plaintiffs also assert that defendant violated 29 C.F.R. § 1910.1018. That section
relates to inorganic arsenic and provides that “[t]he employer shall assure that no
employee is exposed to inorganic arsenic at concentrations greater than 10 micrograms
per cubic meter of air (10 μg/m3), averaged over any 8-hour period.” 29 C.F.R. §
29

1910.1018(c). It also sets forth “[m]ethods of compliance,” which instruct employers to
“institute at the earliest possible time but not later than December 31, 1979, engineering
and work practice controls to reduce exposures to or below the permissible exposure
limit, except to the extent that the employer can establish that such controls are not
feasible.” 29 C.F.R. § 1910.1018(g)(1)(i). And “[w]here engineering and work practice
controls are not sufficient to reduce exposures to or below the permissible exposure limit,
they shall nonetheless be used to reduce exposures to the lowest levels achievable by
these controls and shall be supplemented by the use of respirators in accordance with
paragraph (h) of this section and other necessary personal protective equipment.” 29
C.F.R. § 1910.1018(g)(1)(ii). Thus, this section does not prescribe a specific course of
conduct regarding use of respirators; rather, only that where engineering and work
practice controls are insufficient to reduce exposure to inorganic arsenic are employers
required to implement use of respirators, and even then, the use is to comply with 29
C.F.R. § 1910.1018(h). Plaintiffs have not asserted that there were any impermissible
exposures. Indeed, evidence submitted by defendant indicates that exposure levels have
been below any established action limits for inorganic arsenic [Case No. 3:13-CV-666
Doc. 17-3 ¶ 23].
Contract/SWSHP/Website Directives. Plaintiffs cite to the following provisions
of the Jacobs/TVA contract as setting forth mandatory directives:
(1) TVA believes that Safety and Health is its most important value
and all injuries and most illnesses, both on and off the job, are
preventable. TVA is a zero injury culture company and expects its
contractors and their subcontractors to be committed to a zero injury
30

work culture environment and that occupational accidents or other
incidents in which human health or safety is jeopardized are never
acceptable.
(2) Contractor will be proactive in taking necessary measures to
avoid accidents or incidents which human health or safety is
jeopardized. Contractor shall not permit any person employed by it
or any subcontractors in the performance of work pursuant to this
Contract at a project or worksite owned or controlled by TVA to
work in surroundings or under working conditions which are
unnecessarily dangerous to human safety or health.
[Doc. 11-1 at 30]. Plaintiffs also cite to provisions of the SWSHP, specifically sections
1.4 and 4.2. Section 1.4 provides:
Beyond Zero Performance describes a site approach and establishes
expectations for both safety and project execution. We will achieve
this level of performance excellence through teamwork and
partnering with our client, site contractors and through the
participation of every person on this project.
All site personnel are entitled to safe working environment,
individually and collectively; we are responsible for our own safety
and that of our fellow employees.
We believe the following:
All incidents are preventable through proper planning, tasking, and
execution of plans as written.
Any goal less than Zero Incident Performance is unacceptable and
sends the message that incidents cannot be prevented.
Active participation by all personnel is required to achieve Beyond
Zero Performance. This includes all site personnel working
collectively.
If any incident does occur, it must be reported and investigated to
identify root causes, take corrective actions, and communicate the
lessons learned.
31

Various Beyond Zero initiatives will be developed and rolled out
with support and approval of key site management.
[Doc. 11-3 at 8]. And section 4.2 provides:
It should be noted that TVA has the following issues which are
considered to be immediately dangerous to life and are “Zero
Tolerance”. Per the Zero Tolerance policy, violation will result in a
90 day termination for the first offense with more severe disciplinary
action for repeat offenses. These are further discussed within this
document where applicable and shall be addressed as appropriate for
the task on all job safety analyses:
...
 Failure to wear required respiratory protection.
[Doc. 31-1]. Finally, plaintiffs cite to defendant’s website, which states:
Most companies agree they have an obligation to provide their
employees with a safe and secure work environment. They create
safety programs, insist on employee training and have occasional
meetings.
But at Jacobs, we take safety to the next level.
Our goal is to take safety to BeyondZero® by preventing even one
accident from occurring. We put the personal health and safety of
our employees first - wherever they are.
For us, safety is more than a policy or a training video; it’s how we
do business and it’s how we live. Our people are our greatest asset
and the basis for our success. We believe that we owe it to our
employees to help keep them and their families, communities, our
clients and our contractors healthy and happy.
When you join Jacobs, you join a culture of caring.
[Doc. 16-1].

32

The Court finds that these asserted directives do not prescribe a specific course of
action that had to be followed so as to eliminate the applicability of derivative
discretionary immunity. Instead, these asserted directives set forth general objectives or
goals for defendant (i.e., a safe working environment) without any specific procedures for
defendant to follow to achieve those objectives or goals. Courts across the country have
made similar determinations. See, e.g., Snyder v. United States, 504 F. Supp. 2d 136,
141–43 (S.D. Miss. 2007), aff’d 296 F. App’x 399 (5th Cir. 2008) (finding that regulation
that provided that “refuse, in any form, should not be disposed of where it may pollute
surface or underground waters which are eventually to be used as drinking water” not a
specific directive); Shea Homes Ltd. P’ship v. United States, 397 F. Supp. 2d 1194, 1199
(N.D. Cal. 2005) (finding that regulation requiring operator to “[t]ake all immediate steps
necessary to protect public health and safety, and the environment” does not mandate a
specific course of action but “calls for discretionary judgments as to the immediacy and
nature of the risk—i.e. what, if any, ‘immediate’ steps are ‘necessary’ to ‘protect public
health and safety, and the environment’—and, if so, judgments as to the substance and
timing of those specific steps”). And regarding specifically section 4.2 of the SWSHP,
although plaintiffs assert some of them were prescribed respirators by their physicians,
plaintiffs have made no assertion that they were “required” to wear respirators under the
terms of the SWSHP or any other binding rule. Indeed, a prescription was not even
necessary to wear a respirator on site [See Case No. 3:13-CV-666 Doc. 17-3 ¶ 21].

33

Accordingly, for all these reasons, the Court finds that derivative discretionary
function immunity applies here. Plaintiffs have not identified a mandatory regulation or
policy that allowed for no judgment or choice with respect to the allegations in the
complaint and defendant’s conduct is of the kind that the discretionary function exception
was designed to shield.13
VI.

Conclusion
For the reasons explained in this memorandum opinion, the Court finds that

derivative discretionary function immunity applies here. Thus, plaintiffs’ claims will be
DISMISSED and the Clerk of Court will be DIRECTED to CLOSE this consolidated
action.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

13

The Court declines to address plaintiff’s assertions that defendant created a climate of
fear regarding use of respirators; these assertions are not relevant to determining whether
defendant is entitled to immunity.
34