TVA contractor Jacobs faces another worker lawsuit over coal ash cleanup

A major contractor hired by the Tennessee Valley Authority to supervise cleanup of the nation's largest coal ash spill is facing another lawsuit over allegations that disaster relief workers weren't properly protected.

Attorney John Dupree this week filed in Roane County Circuit Court a wrongful death lawsuit against Jacobs Engineering, a global contractor TVA put in charge of cleaning up a spill of 7.3 million tons of coal ash from its Kingston coal-fired power plant in December 2008.

Dupree is one of four Knoxville attorneys who have been representing coal ash workers who say they were sickened in the spill cleanup.

The lawsuit was filed on behalf of 119 workers and their family members who say they were sickened by exposure to the toxins in coal ash and on behalf of the survivors of five workers who died before the latest lawsuit was filed.

In at least one of those deaths, the lawsuit alleges, an autopsy has confirmed the worker — Stephen Ausburn, 47, of Harriman — died from coal workers' pneumoconiosis, or black lung, even though Ausburn had never worked in a coal mine. It is a condition caused by long-term exposure — through breathing without protective gear — to coal dust.

Autopsy: Black lung cause of death

Coal ash — the byproduct of burning coal to produce electricity — contains the same silica quartz dust as coal but in a more concentrated form. Jacobs Engineering has repeatedly said testing at the cleanup site showed the Kingston cleanup workers were not exposed to dangerous levels of silica.

The lawsuit says Ausburn’s case is proof of workers’ claims Jacobs manipulated the testing process, destroyed unfavorable results and samples, and tampered with testing devices.

Jacobs’ attorney Theodore Boutrous Jr. said the firm is reviewing the lawsuit, but the firm denies wrongdoing in the alleged sickening of the Kingston disaster workforce.

"There has been no finding of liability in these cases, and Jacobs stands by the quality of its work in assisting TVA with the management of the Kingston cleanup,” Boutrous wrote in an earlier statement.

“Jacobs takes pride in working on some of the world’s toughest challenges and in protecting the safety of all those who work on its projects.”

Decade-old spill at center of lawsuit

A dike on a coal ash storage facility at the TVA Kingston Fossil Plant in Roane County gave way in December 2008, spilling 7.3 million tons of toxic coal ash onto 300 acres of land.

TVA’s inspector general later concluded the dike failure was TVA’s fault.

The spill destroyed a half-dozen homes, roads and infrastructure and remains the largest human-created environmental disaster in U.S. history — larger than the 1989 Exxon Valdez oil spill in Alaska and 2010 Deepwater Horizon oil spill in the Gulf of Mexico.

Coal ash contains at least 26 toxins, heavy metals and radioactive isotopes, according to TVA’s own testing and Duke Energy’s Material Safety Data Sheet.

Since the spill, at least 40 disaster workers have died from ailments and 400 have been sickened, according to a tally kept by the Knoxville News Sentinel.

Workers say exposure to coal ash caused the illnesses, and in 2013, 53 workers and their relatives filed a lawsuit in U.S. District Court in Knoxville against Jacobs, alleging the firm’s safety managers lied about the dangers of coal ash and denied them adequate protective gear such as masks, respirators and Tyvek body suits.

A jury decided in November 2018 in a U.S. District Court case that Jacobs breached its contract with TVA and its duty of care to protect the workers. The jury also ruled Jacobs’ breach was capable of causing the sicknesses claimed by the workers.

Lawsuit: Jacobs knew about risks

Since that verdict — which only gives workers a chance at seeking money for testing and medical treatment in separate trials that must prove that the illnesses were caused by exposure during the cleanup — leaders representing residents in Roane County, Harriman and Kingston have sued in Roane County Circuit Court against TVA and Jacobs Engineering.

The lawsuit filed by Dupree on Monday mirrors the allegations in the federal case that disaster relief workers were exposed to the Kingston ash without masks or respirators and Tyvek body suits for as much as 60 hours a week for months at a time for some and years for others. Some workers were employed at the site for as many as seven years.

Workers have testified Jacobs’ safety managers told them that they could safely eat a pound of coal ash, a statement not scientifically supported. Jacobs officials have said the statement wasn't made to be taken literally, according to court testimony.

“Jacobs had in its possession manuals for fly ash safety that contained vital information on fly ash toxins that were not properly disseminated to individuals working at the site,” Dupree’s lawsuit alleges. “Jacobs never informed plaintiffs of the fly ash dangers nor adhered to its (safety plan).”

Workers allege Jacobs' managers denied them more extensive protective gear, destroyed boxes full of protective dust masks and threatened to fire them if they insisted on protection. At least one worker maintains he was terminated by a TVA supervisor after his doctor ordered respiratory protection.

“Even bringing your own dust mask was prohibited and individuals would be threatened with job status if worn,” the lawsuit stated.

TVA, Jacobs: No masks needed

Jacobs and TVA maintain additional protective gear, including dust masks, respirators and protective coveralls, wasn’t necessary based on exposure threat level testing. The workers allege Jacobs tampered with the testing.

TVA was required under an administrative order to maintain all records — including videos — related to the cleanup through December 2018. An October 2017 letter obtained by the Knoxville News Sentinel from TVA said videos that could have shown worker conditions during the cleanup were “no longer available.” The utility won’t say why.

TVA’s own testing — in 1981 and 1995 — revealed its coal ash contained radioactive materials and toxic heavy metals, but TVA didn’t tell plant workers and contract laborers about that for at least two decades, according to TVA records and interviews of workers conducted by the Knoxville News Sentinel.

Investigation:USA Today Network-Tennessee's award-winning probe, coverage

Chief U.S. District Judge Tom Varlan has ordered Jacobs to try to negotiate a settlement in the federal case, noting many of the sickened workers do not have health insurance. Jacobs is trying to appeal. Varlan has refused the firm’s request for an appeal, and the firm is now trying to appeal despite Varlan’s refusal.

The verdict means the workers can pursue damages against Jacobs if no settlement is reached and they can prove they are sick and that Jacobs is to blame for that sickness. Jacobs is suing subcontractors under indemnity agreements built into the firm’s contract with TVA and invoking a separate indemnity agreement with TVA to recoup any damage awards and the firm’s legal bills.

Another lawsuit was filed against Jacobs in Roane County Circuit Court in March 2018 on behalf of an additional 180 workers and their relatives.

Leaders in Roane County, Harriman and Kingston also are now suing TVA and Jacobs over the cleanup, and Anderson County leaders are threatening court action against TVA over coal ash contamination worries at the Bull Run Fossil Plant in the Claxton community.

The Knoxville News Sentinel and reporters from other Tennessee newsrooms in the USA TODAY Network launched an independent investigation of the cleanup in 2017.