Judge approves coal ash lawsuits

A federal judge says hundreds of blue-collar laborers who cleaned up the nation’s largest environmental disaster have amassed enough evidence to allow an East Tennessee jury to decide if the coal ash in which they toiled unprotected for years is killing them.

Chief U.S. District Judge Tom Varlan shot down Jacobs Engineering’s bid to have lawsuits filed by laborers at the TVA Kingston Fossil Fuel Power Plant December 2008 coal ash spill in Roane County tossed out without a trial.

LIES AND VIDEOTAPE

More than 30 workers are dead, and more than 200 are dying since the spill. The workers and their survivors say supervisors of the California government contractor TVA put in charge of the cleanup of the 5 million cubic yards of coal ash — loaded with toxins including arsenic and radium — lied to them, denied them protective gear and tampered, influenced and destroyed test results.

USA Today Network-Tennessee launched an investigation of the workers’ claims last year and has published a series of stories that showed:

› the laborers were never told independent testing of the coal ash found dangerously high levels of arsenic and radium;

› Jacobs supervisors tampered with monitoring devices and skewed results;

› the EPA bowed to demands by Jacobs to lower worker safety standards and by TVA to downplay the toxicity of coal ash and the danger of exposure to it in public signage;

› Jacobs and TVA managers refused to provide workers’ protective gear even when their doctors prescribed it;

› Jacobs supervisors repeatedly told workers — falsely — they could eat or drink a pound of coal ash a day safely;

› and TVA ratepayers foot the bill for a $1 million decontamination complex for clean-up vehicles while Jacobs provided workers — who worked 12 to 14 hours every day mired in and surrounded by coal ash — a single bucket of water and a brush to clean their bodies and boots.

JACOBS: PROVE COAL ASH KILLS

Even coal ash producers, such as TVA, acknowledge the substance — a byproduct of burning coal to produce electricity — is full of a highly concentrated stew of toxic chemicals and heavy metals, isn’t safe to eat and long-term exposure without protective gear can be dangerous.

Jim Sanders, lead attorney for Jacobs Engineering, argued, though, that the workers must prove the specific coal ash at the Kingston site was dangerous and that their exposure to it is what’s killing them — all before a jury of East Tennesseans can hear the case.

The workers don’t have reliable test data on that specific ash because of the tampering and manipulating of results documented in USA Today Network-Tennessee’s investigation. The EPA also invalidated months of testing after a Jacobs partner in the cleanup — The Shaw Group — tapped a lab with major equipment and standards violations.

Sanders contended that even if the workers could show coal ash — generally — is too dangerous for unprotected, long-term exposure, they had no scientific study documenting that coal ash itself — not just the dangerous toxins and metals it contains — sickens the body.

Sanders asked Varlan to dismiss the lawsuits. Varlan, though, refused in an order made public this week in U.S. District Court.

JUDGE: PROOF IS ‘LEGION’

He said Dr. Paul Terry, an epidemiologist at the University of Tennessee who is helping the workers as an expert witness, found plenty of proof the toxins and metals in coal ash are capable of causing the diseases — blood cancers, lung and brain cancers, chronic breathing ailments, leukemia and coronary heart disease, to name a few — from which the laborers are dead or suffering.

“The EPA has expressed concern about the leachability of toxic metals from fly ash, noting that the constituents of most environmental concern include arsenic, cadmium and chromium,” Varlan wrote. “The EPA also presented data showing numerous instances where these constituents [especially arsenic] have leached at levels of concern.

“If these toxic constituents can become unbound through leaching, as the EPA seems to recognize, it stands to reason that Dr. Terry could extrapolate from that information how those constituents might also be absorbed by the body.”

Varlan ruled attorneys for the workers have presented plenty of proof the laborers were exposed to dangerous levels of it.

“Plaintiffs have presented evidence that they, in general and as a group, were exposed to large amounts of coal and fly ash at the Kingston site and were not allowed to wear protection,” Varlan wrote. “[Jacobs] concedes that the toxic constituents found in that ash can, under certain circumstances, cause the complained-of diseases.

“The record is replete with evidence about plaintiffs’ exposure to fly ash,” the judge continued. “The ash was abundant and often airborne, obscuring vision and sometimes producing ‘ash twisters.’ The fly ash would find its way into plaintiffs’ mouths and other orifices. One affiant recounts his being stuck in knee-deep fly ash for approximately 10 minutes.

“Another affiant recalls that some plaintiffs ate food that had been contaminated with fly ash and were told that it was safe to do so,” Varlan wrote. “Moreover, there is evidence in the record that plaintiffs were not allowed to wear respiratory protection or dust masks, despite requests, and even when prescribed by a doctor.

“The evidence proffered of plaintiffs’ collective, significant exposure to fly ash is legion and need not be detailed further,” the judge ruled. “Based on these facts — Dr. Terry’s conclusions that the constituents are capable of causing the above-mentioned diseases — combined with plaintiffs’ significant and repeated exposure to fly ash, a reasonable jury could conclude that plaintiffs’ exposure to those constituents was capable of causing those diseases.”

PHASE ONE TRIAL STARTS SOON

Because attorneys for the workers are pursuing a toxic civil tort action, they face an extra legal hurdle. They first must convince a jury the coal ash is dangerous and their illnesses linked to it.

A trial on that phase of the case is set to begin Oct. 16. If the workers win that round, then they will get a chance to convince another jury Jacobs Engineering and its staffers failed to protect them as their contract with TVA — and its ratepayers — required.

At a hearing Thursday, Sanders said Jacobs plans to argue it had no duty to protect the workers and, if the firm did, its supervisors didn’t knowingly breach it. Jacobs supervisors Tom Bock and Sean Healey are accused of lying to the workers, telling them it was safe to eat or drink a pound of coal ash daily.

The pair denied that in sworn testimony in the lawsuit. But the workers’ attorneys have since discovered an email exchange between Bock and Healey in which Healey advises supervisors to use that tag line — safe to eat a pound a day — when addressing concerns about the coal ash and worker safety.

At a hearing before U.S. Magistrate Judge Bruce Guyton on Thursday, attorney Jim Scott argued Jacobs should be publicly sanctioned for what he called the firm’s intentional deceit.

“I haven’t seen conduct like this in a catastrophe like this — this kind of corporate vindictiveness,” Scott said. “These people were misled.”

Sanders countered Jacobs used the tag line as a metaphor for the proposition that stringent decontamination requirements weren’t necessary for the massive clean-up effort for which the firm earned at least $27.7 million and were due to receive bonuses for quick, injury-free work. TVA has insisted its ratepayers did not shell out bonuses to Jacobs but has provided no records to support the claim.

“Mr. Healey is saying this is not a normal decontamination,” Sanders argued. “It is not misleading … You can eat a pound a day without being in danger of toxic effects. You would have to do something you would never do — once — and then do it every day to reach toxic effects … The main victim of this [sanctions’] motion is Sean Healey.”

Guyton said he would issue a written ruling soon.