Prove your humanity

This article originally appeared on Inside Climate News. It is republished with permission. Sign up for their newsletter here.

For dozens of Tennessee workers who cleaned up the nation’s worst coal ash spill and claimed it made them sick, the recent jury verdict against their employer was a major victory after a five-year slog through the federal courts.

The jury found Jacobs Engineering failed to protect the workers, and it concluded that their exposure to toxic heavy metals and radiation in the coal ash could be responsible for their illnesses, from skin rashes to lung disease to cancer.

Now, their attorneys will need to link each plaintiff’s coal ash exposure to their illness or death to determine financial damages, and legal experts say this step will be more difficult. The outcome is likely to be closely watched by others around the country who live near coal ash sites, and by companies that produce and dispose of coal ash waste.

When a levee holding back coal ash from the Tennessee Valley Authority’s Kingston power plant broke in December 2008, the flood of ash smothered some 300 acres and spilled into two rivers. Three homes were destroyed and dozens more were damaged. Photo: Dot Griffith/ Appalachian Voices

The human toll from the coal ash spill has been devastating. Some 30 people who cleaned up the ash at the power plant near Kingston have died with ailments that can be linked to exposure to toxic elements of coal ash, and more than 250 are sick or dying, according to an investigation by the Knoxville News Sentinel and the USA Today Network in Tennessee. This first lawsuit involves an initial group of 70 plaintiffs.

The incoming congressman for the Knoxville area, Republican Tim Burchett, has called for federal agencies or Congress to investigate the illnesses and deaths. “Those affected deserve answers and anyone at fault should be held accountable,” he said.

Parallels to 9/11 Recovery Worker Cases

To help make their case at trial, the workers’ lawyers turned to Paul D. Terry, a University of Tennessee epidemiologist who reviewed research that linked the various components of coal ash with the workers’ illnesses.

Lead can cause hypertension or peripheral neuropathy, for example. Arsenic, cadmium and fine particulates can cause coronary artery disease. Cadmium and fine particulates can cause chronic obstructive pulmonary disease. Ionizing radiation can cause leukemia.

Terry also found an excessive burden of certain diseases among the coal ash workers, given the reported incidence rates of those same diseases in the general population, according to court records.

In a Sept. 19, pre-trial ruling, U.S. District Judge Tom Varlan refused to reject Terry’s findings and dismiss the case, concluding that the workers’ attorneys had “put forward evidence from which a reasonable jury could find that plaintiffs’ exposure was capable of causing the complained-of diseases” and that as a group they were “exposed to large amounts of coal and fly ash at the Kingston site and were not allowed to wear protection.”

The judge also noted that even Jacobs had conceded that “the toxic constituents found in that ash can under certain circumstances cause the complained-of diseases.”

Workers prepare to place plastic covers over rail cars with scooped-up coal ash. Credit: TVA

Examining the constituents of coal ash for potential toxicity “is exactly the right way to proceed in assessing the occupational hazards of exposure to this material,” said Dr. Philip Landrigan, director of the Global Public Health Program at Boston College, who was not involved in the ash workers’ lawsuits but was centrally involved in medical and epidemiologic studies that followed the destruction of the World Trade Center on September 11, 2001.

He said a critical part of that work was an analysis of the World Trade Center dust to determine which toxic chemicals were in it. This case has parallels.

But the next phase of this legal struggle will likely be harder. The workers could be put under a legal microscope, their medical, work and personal histories closely examined. Questions about whether they smoked cigarettes, drank too much alcohol, or whether they held other jobs that exposed them to toxic chemicals could come up, for example.

“It is very difficult for plaintiffs to demonstrate that a particular exposure to a particular toxic chemical caused a particular adverse health outcome,” Mark Vandenbergh, a Vanderbilt University law professor and former chief of staff at the U.S. Environmental Protection Agency, said. “So this will be a very hard-fought battle, and it will be a battle of the experts.”

It’s also not certain how the consolidated court case will proceed. Sometimes in toxic tort matters, a few plaintiffs are chosen to go first as bellwethers, said Dean Hill Rivkin, professor emeritus at The University of Tennessee College of Law in Knoxville, who has been following the case but is not a part of it. Mediation with an effort to reach a settlement is also a possibility, or the company could appeal the jury’s recent findings, he said.

The Problems with Coal Ash

Coal-burning wastes, including scrubber sludge, bottom ash and fly ash, make for one of the nation’s largest industrial waste streams, and utilities for decades have stored large volumes in ponds and landfills. It comes from burning coal for electricity, among the most pernicious sources of carbon dioxide emissions that cause global warming.

The Tennessee case stems from an epic disaster near Knoxville on Dec. 22, 2008.

A levee that was holding a mountain of sodden ash suddenly broke loose from the Tennessee Valley Authority’s Kingston power plant, smothering some 300 acres and spilling into two rivers. Three homes were destroyed and dozens more were damaged.

While the spill reignited a national debate over the management of coal ash that continues today, within days Duke University scientists had found that, among other concerns, naturally occurring radiation levels in the TVA ash were high and warned that could present health risks if the ash were allowed to blow in the air.

TVA spent more than $1 billion on the cleanup, hiring Jacobs to do a large part of the work.

The first lawsuits by the cleanup workers were filed in 2013, with claims the company downplayed the risks from coal ash and failed to ensure their protection. Jacobs got the case dismissed, but the U.S. Sixth Circuit Court of Appeals in 2015 sent the matter back to District Court, where it finally came to trial last month.

The verdict in the first phase of the trial made for “a very good day for our clients,” said Knoxville attorney John DuPree, one of several lawyers representing the workers. “We appreciate the jury’s hard work and the court’s hard work on this case.”

A Jacobs spokeswoman, Lorrie Paul Crum, declined to comment because the matter is still in court. Court records show that the company’s experts had argued that the workers were not exposed to ash at levels that were high enough to cause illness.

A Wider Health Problem

The case may raise questions for people other than clean-up workers who may be exposed to coal ash from the hundreds of coal ash ponds or landfills scattered across the country, especially in the Southeast.

Community exposure would be less than for people who are directly working with ash but still is a matter of potential concern, said Kristina Zierold, a University of Alabama Birmingham associate professor of environmental health sciences, and an expert on the subject.

Her research in Kentucky has found some Louisville parents blame their coal ash for their children’s health problems, and that significantly more children living near coal ash storage sites have health problems such as allergies, ADHD, gastrointestinal problems and sleep problems, compared to children living 60 miles from the nearest power plant.

The Kingston coal ash spill cleanup cost TVA more than $1 billion, with Jacobs getting a large part of that work. A jury in 2018 found the company liable for workers’ illnesses. Credit: TVA

She is now attempting to determine whether ash is the culprit, and whether it might be causing neurobehavioral problems  in children. In all, she said, as many as 6 million Americans could be exposed to coal ash, including 1.5 million children.

While the Tennessee workers’ case continues to make its way through the court system, coal ash remains a political football. The Obama administration in 2015 put in place new rules to better manage coal ash, and many utilities have begun to close coal ash ponds as a result.

But environmentalists had complained at the time because EPA agreed with industry against designating the wastes as hazardous, which would have triggered federal enforcement and stricter disposal rules. The Trump administration has since watered down those Obama rules, prompting a lawsuit by environmental groups, including Earthjustice.

The fact that a jury found that coal ash could have sickened the Kingston clean-up workers further shows the need for its careful management, said Thomas Cmar, an Earthjustice attorney.

“The Kingston verdict only reinforces what we already know—that coal ash is toxic and dangerous,” he said.