The companies that designed and built part of a Pittsburgh-area power plant can’t escape a trio of lawsuits brought after a 2017 gas leak killed and injured workers, a Pennsylvania federal judge ruled Monday.
Senior U.S. District Judge David S. Cercone held that URS Corp. and several related companies could be on the hook for problems with a “dewatering plant” used to treat coal ash at the Bruce Mansfield Power Plant in Shippingport, Pennsylvania, which eventually led to the buildup of toxic hydrogen sulfide gas that was released in late August 2017, killing two workers and injuring four others who were working under a contract with plant operator FirstEnergy.
“The Supreme Court of Pennsylvania has long recognized that a party to a contract may be found liable in tort for negligently performing contractual obligations and thereby causing injury or other harm to another contracting party,” Judge Cercone wrote. “When in completing a contractual obligation it is reasonably foreseeable that a normal and natural result of the failure to perform the undertaking in a proper manner might result in injury to others who are on or will be coming into contact with premises, the imposed duty arises.”
Judge Cercone denied URS’ motion to dismiss three lawsuits brought by one injured worker and the estates of the two deceased workers.
The workers had sued URS and its parent company, AECOM, in August 2019, claiming that the engineering firm had improperly designed and built an extension of the plant that extracted and treated coal ash in a way that could let bacteria eat the sulfur in the ash and produce high concentrations of deadly gas.
AECOM and other units not directly involved in building the dewatering plant were dropped from the cases in January, and URS said it should escape the suits, too, because it had no contractual duties to the workers, who were employees of a separate contractor, Enerfab.
But Judge Cercone said negligence claims based on a contractor’s actions aren’t viewed as claims on the contract itself—”the contract is regarded merely as the vehicle … which established the relationship between the parties” when the allegedly negligent action took place.
And when URS built the plant for removing water from coal ash, it knew that the materials the plant was dealing with were hazardous, the judge said, noting that the facility was being built as part of a consent order with the Pennsylvania Department of Environmental Protection to prevent the disposal of the coal ash byproducts in a giant storage pond because of the hazards it presented.
“Here, plaintiffs have presented sufficient allegations to proceed with their claims based on a general duty of care imposed by law. URS’s contractual undertakings were centered on designing and constructing a facility to handle and process substances which are hazardous to the environment and human health,” the judge wrote. “Given the public concern and governmental regulation underlying the contractual undertaking, the nature of the contract is one that gave rise to a general duty to exercise reasonable care to perform its obligations in a manner that would avoid injury to third parties.”
Although URS contended that the fatal accident took place in part of the power plant it had not built, the judge said the workers sufficiently alleged that the URS-built dewatering facility’s failure to run as intended led to the buildup of coal ash waste elsewhere on-site, which allowed the growth of the bacteria that converted sulfur in the coal ash to the hydrogen sulfide released in the accident.
“It is alleged that the coal ash byproduct was being generated for months at the plant without a means of disposal,” the judge wrote. “It is reasonably foreseeable that a significant accumulation of the byproduct would create a risk of physical harm or injury to others who might be at the location where it was being stored and/or at a location where its remnants might be found to have migrated if the slurry was left to disperse/deteriorate over time.”
An attorney for URS declined to comment Monday. Counsel for the workers did not immediately respond to requests for comment.
The workers are represented by David L. Kwass, Elizabeth A. Bailey and Robert J. Mongeluzzi of Saltz Mongeluzzi Barrett & Bendesky PC, Richard Urick of McMillen Urick Tocci & Jones, and Robert J. Fisher Jr. and Brad D. Trust of Edgar Snyder & Associates LLC.
URS Corp. of Ohio is represented by Amy Joseph Coles, Kevin M. Eddy, Ricky M. Guerra, and Shawna J. Henry of Blank Rome LLP.
The cases are Gorchock v. URS Corp. et al., case number 2:19-cv-01323; Bachner v. URS Corp. et al., case number 2:19-cv-01324; and Cantwell v. URS Corp. et al., case number 2:19-cv-01325, all in the U.S. District Court for the Western District of Pennsylvania.