TVA contractor loses bid to ferret out sources in newspaper’s probe
An East Tennessee newspaper has won a court fight to protect the identities of sources who assisted the newsroom in its investigation into the level of radioactive material in the Tennessee Valley Authority’s coal ash waste.
Jacobs Engineering, the TVA contractor that took on the cleanup of the massive 2008 Kingston power plant coal ash spill, tried to obtain The Knoxville News Sentinel’s investigative material from a Duke University professor contracted by the newspaper to test coal ash samples.
The News Sentinel intervened to try to block the move, arguing Jacobs Engineering was abusing the subpoena process in a bid to intimidate and silence critics of the firm’s treatment of laborers who cleaned up TVA’s massive spill at its Kingston coalfired power plant in December 2008.
In a ruling issued in U.S. District Court of the Eastern District of North Carolina, U.S. Magistrate Judge Robert B. Jones sided with the newspaper.
“The journalistic privilege outweighs Jacobs’s interest in disclosure of the information, and the motion to quash the subpoena is allowed,” Jones ruled.
The News Sentinel has devoted years to reporting on the coal ash spill, and Executive Editor Joel Christopher said the news organization will always vigorously assert its newsgathering rights.
“Without a newsroom like ours devoting tremendous time and resources to revealing the truth about how the coal ash cleanup was conducted and the dangers posed by coal ash, East Tennesseans would be in the dark,” Christopher said. “We will continue to fight on the behalf of people to know about threats to their health and to defend those who help reveal truth.”
JACOBS: GIVE US YOUR INFORMATION
The News Sentinel has been investigating the handling of the Kingston spill clean-up operation since 2017 and has produced a series of awardwinning stories exposing allegations of mistreatment of the labor force and misrepresentation of the danger TVA’s coal ash waste poses to the public and the environment.
In May, the newsroom published its latest investigative findings, revealing the Tennessee Department of Environment and Conservation — tasked with overseeing the cleanup — botched its testing of the Kingston coal ash and altered radiological reports without public notice.
The News Sentinel also revealed in that May report it had obtained samples of TVA’s Kingston coal ash waste from the 2008 spill, as well as samples of the toxic waste produced at the plant in 2017, 2018 and 2019, and commissioned a study by a nationally recognized expert on the hazardous substance: Duke University professor Dr. Avner Vengosh.
Vengosh’s analysis revealed TVA’s coal ash waste — the toxic byproduct of burning coal to produce electricity — contained levels of radioactive material as much as five times greater than that claimed in public records about the spill by the Tennessee Department of Environment and Conservation, TVA and Jacobs.
Vengosh confirmed the waste is dangerous to breathe, contradicting the assertions that coal ash was mostly “inert dust” that did not pose a radiological threat.
Within days of the report’s publication, Jacobs subpoenaed Vengosh for all information supplied to him by the News Sentinel and all communication between him and the news organization. Jacobs did not notify the newspaper.
TVA, meanwhile, stopped doing business with Trans Ash, the firm the utility has long used to handle its coal ash waste at Kingston and other plants in Tennessee. TVA denied the move was tied to revelations the News Sentinel had obtained samples from the Kingston plant.
“The contract was not terminated,” TVA spokesman William Scott Gureck said. “The contract term expired and a new vendor was selected through a competitive process.”
‘STRIKING AT CORE’ OF PRESS FREEDOM
When the News Sentinel learned of the subpoena, the news organization hired North Carolina attorney John A. Bussian to fight it on behalf of both the news organization and Vengosh.
“The context, timing, and content of the subpoena make it clear that Jacobs issued the subpoena not for information to defend the underlying lawsuit, but rather to gather confidential information supporting a news story it disfavors and to chill the activity of a reporter and newspaper who have doggedly covered this important public issue for several years,” Bussian wrote in a motion.
“The civil discovery process is not intended to be a vehicle to quiet critics and restrain speech. This subpoena strikes at the core First Amendment rights of the newspaper because it is intended to uncover and thereby chill the confidential and non-confidential sources with whom a reporter for the newspaper spoke in reporting a story of paramount public concern — whether coal ash from a major spill in 2008 contained much higher levels of uranium than had been previously revealed.”
Jacobs has been facing federal litigation by Kingston disaster workers who say they were sickened by unprotected exposure to the radioactive coal ash waste. The firm has repeatedly denied any wrongdoing — even after a jury ruled the workers had cause to bring the lawsuit, although they have to prove in a separate phase their illnesses actually were caused by coal ash exposure.
The firm now insists it relied upon TDEC and the state agency’s public reports on the toxicity of the Kingston ash to fashion a safety plan for workers.
“If TDEC’s data was flawed — as Dr. Vengosh claims his data show — then Jacobs may have a defense to liability, since it reasonably relied on the government agency tasked with measuring the amount of uranium,” attorney Alan Duncan wrote on behalf of Jacobs.
“Plainly, Jacobs has no other way to obtain documentation of Dr. Vengosh’s data than through the subpoena at issue in this action,” Duncan wrote.
The News Sentinel’s ongoing investigation has revealed that Jacobs published in 2011 its own report on the characterization of the Kingston ash that also concluded the waste did not pose a radiological threat. That report cited test results from TVA, TDEC and the EPA as well as Jacobs’ own analysis of that testing.