Worker death toll rises in Kingston coal ash spill; Roane County man latest victim

Harry Hemingway spent two years working — unprotected — to clean up the coal ash that smothered 300 acres in the Roane County community he called home.

His bosses at Jacobs Engineering assured him and the other 900 workers at the site of the nation’s largest environmental disaster that the ash — loaded with cancer-causing heavy metals such as arsenic and radium — was so safe they could eat a pound of it a day without harm.

Now, Hemingway is dead from multiple myeloma, a blood cancer linked to the constituents of coal ash, court records show. He died in August — the latest name added to the worker death toll.

Manipulated, faulty testing

More than 30 cleanup workers at the December 2008 TVA Kingston Fossil Fuel Power Plant coal ash spill are dead and at least 200 are sick or dying — all with common ailments known to be caused by long-term exposure to arsenic, radium and the host of other toxins and metals found in the ash.

The workers are suing Jacobs Engineering — the California government contractor TVA tapped to protect them — in state and federal court.

USA TODAY NETWORK - Tennessee has been investigating the treatment of the hundreds of blue-collar men and women at the cleanup site since early 2017. The news organization in July 2017 published its first series of stories on the probe.

USA TODAY NETWORK - Tennessee had already discovered evidence, including secret video filmed by workers at the cleanup site, that Jacobs Engineering supervisors lied to laborers about the toxicity of coal ash, refused to provide them protective gear, threatened to fire them if they brought their own, manipulated toxicity test results and abandoned testing for the most dangerous chemicals entirely well before the cleanup effort ended.

Follow-up reporting this year has now revealed independent testing of the coal ash in the days after the spill showed dangerously high levels of arsenic and radium.

Workers were never told about those results. And, just three months after independent firm Tetra Tech and others documented high levels of arsenic and radium in the ash, a new testing firm — this one a contractor working for the Tennessee Valley Authority — insisted the ash was safe, according to an ongoing investigation by USA TODAY NETWORK - Tennessee.

Testing to confirm that claim was later tossed out as invalid because the firm had used a lab with faulty testing methods and equipment, the news organization's investigation shows. More testing was later compromised by intentional tampering, the probe shows.

Now, workers trying to prove the Kingston coal ash is killing them have little defensible testing upon which to rely as a court battle looms later this year that could determine whether the laborers even get a chance to present their case to a jury.

Fractured bone leads to diagnosis

Hemingway didn’t know he was dying from the blood cancer — or even had the condition — after he left the cleanup site, according to a lawsuit filed on his behalf by attorneys William Vines, Weldon Patterson and Louis Ringger III.

“Mr. Hemingway worked as a dredger and general cleanup worker in close proximity to the toxic fly ash at the site,” the lawsuit stated. “Consequently, he experienced significant coal ash exposure, both through his skin and respiratory system. He would generally work long hours each day and leave work covered with fly ash. Mr. Hemingway worked on the site for around two years, and at no time during his employment was he ever provided proper safety equipment or informed of the hazards of coal ash exposure.”

In March 2017, Hemingway broke a bone in his arm from “swinging a hammer” and went to Roane Medical Center for treatment, the lawyers wrote.

“Subsequent testing confirmed a diagnosis of multiple myeloma, which was the cause of the pathologic fracture to Mr. Hemingway’s humerus,” the lawsuit stated.

He died Aug. 9 — despite months of chemotherapy and radiation therapy.

“Despite knowing of the hazards associated with coal ash, Jacobs recklessly concealed this information from workers, including Mr. Hemingway,” the attorneys wrote. “Further, Jacobs, through its employee/agent Tom Bock, recklessly induced workers, including Mr. Hemingway, to continue to work on the site without personal protective equipment despite the known dangers associated with prolonged coal ash exposure.

“Mr. Hemingway, in justifiable reliance upon misrepresentation, worked on site without personal protective equipment and was exposed to fly ash on a near constant basis for around two years,” the lawsuit continued. “Mr. Hemingway would not have worked on the site without personal protective equipment had he known of the dangers of prolonged exposure to coal ash.”

Jacobs: Where's proof?

Jim Sanders, lead attorney for Jacobs Engineering, has repeatedly argued in court filings that workers like Hemingway cannot prove the Kingston coal ash in particular is the source of their chronic and fatal illnesses. Instead, he says, they can only show that coal ash is full of toxic substances linked to those illnesses.

“Critically, (the workers’ medical expert) does not make any attempt to connect his opinions addressing exposures to the constituents found in fly ash and an exposure to fly ash,” Sanders wrote.

USA TODAY NETWORK - Tennessee’s investigation has shown the only independent testing firm — Tetra Tech — that verified high levels of radium and arsenic in the Kingston ash was ordered in early January 2009 to pack up and leave the site as TVA took command and put Jacobs and The Shaw Group in charge.

By May 2009, Jacobs and The Shaw Group were reporting to the Environmental Protection Agency that testing showed the ash was safe for workers — despite the high arsenic and radium reported by Tetra Tech and the other independent researchers months earlier.

Harry Pullum of The Shaw Group and Sean Healey of Jacobs insisted any testing standards for dangerous exposure levels should be set high, which meant workers could be exposed to greater levels of toxic chemicals and metals such as arsenic than the EPA said was safe.

The plan approved by the EPA soon after that call didn’t require Tyvek suits at all. The EPA-approved plan contained instead strict rules on whether a worker could even qualify for a respirator or a dust mask. It allowed workers to bring their own respirators and masks, but it gave Jacobs final say, with a provision that said the firm could nix such gear if it “created a hazard.”

The EPA also allowed testing that did not focus on arsenic or radium as the leading indicator of dangerous exposure levels for workers — despite the agency’s own conclusion the coal ash at the Kingston site was full of it, records show.

Lie or metaphor?

Jacobs’ site safety manager, Tom Bock, and TVA site supervisor Gary McDonald have admitted refusing workers’ requests for respirators and dust masks in violation of the plan’s rules on the approval process.

Healey later instructed Bock and other Jacobs safety managers to tell workers they could eat a pound of coal ash every day without harm and to downplay to the EPA and the public the need for decontamination stations for workers, according to an October 2009 email. Bock and Healey later denied that in sworn deposition testimony in the workers’ lawsuits.

A hearing is set Thursday before U.S. Magistrate Judge Bruce Guyton at which attorney Jim Scott and his colleagues in the case will ask Guyton to punish Bock and Healey for their denials in sworn testimony by ruling in the workers’ favor without a jury trial.

Sanders says Healey and Bock were simply using the phrase “eat a pound of coal ash a day” as a metaphor for the general proposition that no specialized decontamination efforts were necessary to protect the workers.

TVA: Coal ash safe for 'industrial use'

TVA is not a party to the lawsuit. Jacobs agreed as part of its contract to defend itself in court — with TVA picking up the tab under certain circumstances. USA TODAY NETWORK - Tennessee has learned Jacobs has invoked a provision in the contract that would force TVA ratepayers to pay its defense bills.

TVA has refused to discuss the contract, the workers or their treatment, citing the lawsuits of which they are not a part.

At a recent public hearing on coal ash storage at the Kingston site, TVA had Mason jars with dry ash — known as fly ash — on display. The agency touted its uses. TVA makes millions annually from selling the ash for industrial purposes.

Scott Brooks, a TVA spokesman, said in an email Wednesday that “fly ash is used in roads, bridges, buildings, airport runways, dams, precast concrete products and driveways.”

He continued, “More than 75 concrete plants in Tennessee, Kentucky, Virginia, Georgia, and North Carolina use Kingston Class F fly ash. … Kingston fly ash was used in all the concrete for (the) Riverwalk parking garage in Knoxville (and the) University of Tennessee Student Union building. Concrete with fly ash is stronger, more durable, lower cost and environmentally friendly. In concrete, every ton of fly ash that replaces Portland cement reduces carbon emissions by 1 ton.”

Asked if TVA markets coal ash as safe to be eaten or inhaled as Jacobs says in its legal pleadings, Brooks responded, “No. It is marketed for industrial uses.”

After USA TODAY NETWORK - Tennessee published its first series of reports last year, TVA added signage to coal ash storage silos warning workers of the dangers of long-term exposure to it and requiring protective gear, including respirators.

Brooks said the signage was required under Occupational Safety and Health Administration guidelines for "indoor exposure" to coal ash.

TVA ratepayers paid Jacobs $27.7 million to keep workers and the community safe during the cleanup operation, which spanned five years and cost $1.2 billion overall.

The workers are paying their own medical and legal bills.

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