CHARLES LYNWOOD SMITH, JR., District Judge.
Barbara Bobo commenced this action against nine defendants.
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."
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.
This court also entered an order granting plaintiff's motion to reconsider the previous denial of her motion for leave to amend her complaint,
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 1012, 1023 (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 1321, 1324 (11th Cir.1983). Additionally,
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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").
Barbara Bobo never worked for TVA as an employee, a contractor, or sub-contractor. 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.
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.
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.
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.
A physician diagnosed plaintiff as suffering from "pleural mesothelioma" in November of 2011.
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, 66 S.Ct. 715, 90 L.Ed. 843 (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).
In order to generate revenue to pay for the responsibilities imposed upon TVA 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.
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 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
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).
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:
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.
29 C.F.R. § 1910.93a(d) (1972), recodified as 29 C.F.R. § 1910.1001 (1975).
OSHA also mandated a particular method of measuring and monitoring asbestos concentrations in the air.
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 asbestos fibers." 29 C.F.R. § 1910.93a(j)(3).
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)."
TVA adopted "Hazard Control Standard 407" for asbestos on April 15, 1974.
Paragraph 4.4 of the Hazard Control Standard provided instructions on the proper use of asbestos containing products:
Paragraph 4.5 of Hazard Control Standard 407 defined the requirements for personal protective equipment as follows:
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."
Paragraph 4.7 established requirements for "Personal and Environmental Monitoring," and provided that:
TVA also was required to "maintain records of personal monitoring and environmental monitoring."
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."
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."
TVA's Division of Nuclear Power adopted a safety and hazard control manual on May 8, 1978.
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.
A memorandum entitled "TVA Policy on Asbestos" established "additional requirements
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, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citing 28 U.S.C. § 1346(b)). Even so, the FTCA's waiver of sovereign immunity does not extend to "[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,
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)
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, 168-69, 111 S.Ct. 1180, 113 L.Ed.2d 134 (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:
Mays, 699 F.Supp.2d at 1006 (quoting FHA v. Burr, 309 U.S. 242, 245, 60 S.Ct. 488, 84 L.Ed. 724 (1940) (footnote omitted)) (alteration in original); see also Meyer, 510 U.S. at 480-81, 114 S.Ct. 996 (quoting Burr, 309 U.S. at 245, 60 S.Ct. 488); Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) (quoting Burr, 309 U.S. at 245, 60 S.Ct. 488).
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).
"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,
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, 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 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.
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.
The Supreme Court observed that the discretionary function doctrine "marks the boundary between Congress' willingness to
The Supreme Court's decision in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (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:
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 537, 108 S.Ct. 1954).
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."
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.
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.
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."
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 employees about the dangers of exposure to airborne asbestos fibers that may have collected on the employee or his work clothes.
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, 111 S.Ct. 1267 (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.") (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., 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,
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.
Plaintiff also contends that TVA was obligated to comply with OSHA regulations concerning asbestos exposure, as well as TVA's internal asbestos policies,
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, 111 S.Ct. 1267 (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, 73 S.Ct. 956, 97 L.Ed. 1427 (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.
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, 108 S.Ct. 1954 (stating that "the discretionary function exception will not apply when a federal statute, regulation, or policy specifically 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.
Furthermore, as previously noted, plaintiff also asserts that TVA acted negligently in its implementation of such policies and, therefore, the discretionary action doctrine should not apply.
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.
Plaintiff alleges that TVA violated OSHA regulations establishing permissible levels of exposure to airborne asbestos fibers.
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 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.
OSHA and TVA each established standards that governed the means of monitoring and determining the quantity of airborne asbestos fibers in a work environment.
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. § 1910.93a(f) (1972). Such samples were to be collected on "membrane filters of 0.8 micrometer porosity mounted in an open-face 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. § 1910.93a(i) (1972).
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."
Plaintiff's response to defendant's motion for summary judgment alleges several violations of the foregoing standards.
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.
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).
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, 73 S.Ct. 956 (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.
In the alternative, this court also finds that TVA's decisions regarding the 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, 76 S.Ct. 122, 100 L.Ed. 48 (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
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 on nuclear power production, the very purpose of Browns Ferry. See Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. 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, 111 S.Ct. 1267; Mays, 699 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, 111 S.Ct. 1267. Rather, any such decisions would merely address the issue of whether to follow the governing OSHA regulations and TVA internal policies. Mays, 699 F.Supp.2d at 1021. As such, those decisions would not fall within the scope of the discretionary function doctrine, and TVA is not shielded from liability on those claims.
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.
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.
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, 108 S.Ct. 1954; Indian Towing Co., 350 U.S. at 69, 76 S.Ct. 122; Mays, 699 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 concentration level) and whether to provide two separate locker
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."
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 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, 111 S.Ct. 1267; 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
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.
Plaintiff presented evidence of only a single 1984 internal TVA memorandum that discussed asbestos training requirements. The memorandum states that all 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.
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.
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 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.
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.
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 motion for leave to amend her complaint,
28 U.S.C. § 1346(b)(1) (ellipses supplied).
