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Roane County sues TVA, contractor

Source: 
Knoxville News-Sentinel

A lawsuit filed on behalf of all Roane County residents accuses the Tennessee Valley Authority and its prime contractor of running a "disinformation campaign" for decades about the dangers of coal ash.

Harriman resident Margie Delozier is suing TVA and Jacobs Engineering in U.S. District Court, and asking a federal judge to certify the lawsuit as a class action on behalf of all county residents exposed to the coal ash produced, dumped or spilled in their community.

They also want the judge to require TVA and Jacobs to pay for diagnostic testing and medical treatment for coal ash exposure.

Neither TVA nor Jacobs responded to requests for comment, although previously TVA insisted its coal ash isn't threatening the public's health or contaminating the air, ground or water in the communities surrounding its dumps, and Jacobs has denied any wrongdoing in the cleanup.

TVA produces and stores millions of tons of coal ash waste and wastewater each year at its six coal-firing plants in Tennessee, including the Kingston Fossil Plant in the Swan Pond community of Roane County.

Coal ash is the toxic byproduct of burning coal to produce electricity.

Jacobs was hired to oversee the cleanup of 7.3 million tons of coal ash sludge that busted through the walls on a dirt pit at the Kingston plant in 2008 and contaminated 300 acres of land and two major waterways – the Clinch and Emory rivers.

The lawsuit contends that the spill threatened to expose a dirty secret – the coal ash industry knew the stuff was toxic but kept quiet. The lawsuit alleges TVA and Jacobs plotted to keep that secret by trotting out a disinformation campaign comparing coal ash to dirt and destroying evidence when cleanup workers began complaining of illnesses.

"In their possession were numerous documents that fly ash constituents can cause cancer, but this was never effectively publicly disseminated," the lawsuit stated.

Subterfuge playbook?

The lawsuit says the coal ash industry used tactics to keep secret the dangers of its product similar to those employed by Big Tobacco and Big Pharma in hiding the addictive properties of their products.

It says TVA and its fellow coal ash producers and merchants deceived the public for decades about the substance's toxicity.

The American Coal Ash Association and other coal ash trade organizations became the disinformation front men, the lawsuit alleges, by producing scientific reports claiming coal ash was safe as dirt and paying for experts to testify whenever someone alleged coal ash poisoning.

"The defendants ... authorized callous cavalier statements that were calculated to mislead the public regarding safety," the lawsuit stated. "Statements including 'ash was so safe you can eat it' was a theme stolen from the defense of other lawsuits involving (coal) ash that resulted in harm to human health.

"... Through branded and unbranded materials, defendants presented information and instructions concerning (coal) ash generally that were false and misleading," the lawsuit stated.

Why would anyone create a disinformation campaign? The lawsuit says it was greed.

TVA and its fellow coal ash producers wanted to sell the toxic stuff rather than spend millions properly storing it as a hazardous waste and protecting workers from it, the lawsuit contends.

"These Defendants conspired to keep secret from the public the constituents of the ... ash, knowing that many living near (coal-fired plants) and (coal ash) workers would need money for burdensome medical expenses and accurate information to relay to individual treating physicians to get proper medical care from problems caused by the ... ash," the lawsuit stated.

Missing videos, 'invalidated' lab results

The lawsuit says TVA hired Jacobs to cover up the threat coal ash posed to Roane County residents and cleanup workers.

An ongoing Knox News investigation has revealed TVA made a deal with Jacobs in the early days of the cleanup to cover the firm's legal bills if anyone sued over coal ash exposure.

The Knox News investigation shows independent testing in the early days of the spill – before Jacobs took over the entire testing process – revealed the ash included radioactive elements and contained dangerous ingredients including arsenic, radium and mercury.

Those early test results, though, wound up "invalidated" – essentially tossed out of the official record – after TVA demanded its own testing of the samples and allowed Jacobs to make the arrangements with a lab, an inspector general's report revealed.

The lawsuit alleges TVA also destroyed videos of the cleanup site to hide dusty conditions.

Representatives of TVA and Jacobs issued press releases and made public statements insisting coal ash is no more radioactive than low-sodium salt and claiming it contained arsenic at levels only slightly higher than dirt and well under safe drinking water standards, the lawsuit alleges.

Jacobs and TVA supervisors misled cleanup workers, using the American Coal Association's "safe enough to eat" claim, and denied them adequate protective gear as part of their plot to cover up the danger of coal ash, the lawsuit alleges.

Jacobs and TVA have both repeatedly denied these claims, and have specifically said the "safe enough to eat" claim was clearly hyperbole.

"Defendants spent vast amounts of the TVA ratepayers' money to market the deceptive safety of the ash in an attempt to influence the public, healthcare providers, government agencies and officials, and the Plaintiffs, which induced them to refrain from taking legal action," the lawsuit stated.

TVA under fire over coal ash

The lawsuit was filed just before the one-year anniversary of a verdict by a federal jury in the first phase of a separate lawsuit against Jacobs filed by workers and their families in favor of cleanup workers who assert they were poisoned by coal ash.

Since that verdict, TVA's own reports have revealed ongoing contamination from coal ash toxins, including arsenic, of groundwater test wells around its coal ash dumps at all its storage sites in Tennessee, including the Kingston plant and neighboring Bull Run Fossil Plant in Anderson County.

TVA has decided, after public outcry in Memphis and legal action in Sumner County, to dig up more than 12 million tons of coal ash and move it away from groundwater and public drinking water sources. It has decades to do so and hasn't yet revealed where it will store the toxic stuff.

A recent EPA hearing on coal ash regulations passed as a result of the Kingston spill and now being rolled back by the Trump administration revealed testimony from citizens across the nation who claim their health has been endangered and their communities poisoned by coal ash.

Tennessee regulators are allowing TVA to investigate itself under a 2015 order that resulted from the Kingston spill. The utility is required under that order to eventually reveal just how much coal ash the utility stores in Tennessee, where and how and to determine if their dumps are causing contamination.

TVA says that investigation is still a few years from completion. Reports reviewed by Knox News show the unlined pit that gave way at the Kingston plant contained nearly twice as much coal ash as TVA records showed. The utility has not publicly explained the discrepancy.

Since the spill, 44 cleanup workers have died and more than 400 are sick, according to an ongoing tally by Knox News of court records. The November verdict means the workers in the suit can pursue damages against Jacobs if they can prove they are sick and that Jacobs is to blame for that sickness.

U.S. District Judge Tom Varlan has ordered Jacobs to try to negotiate a settlement. The firm tried to appeal but lost. Jacobs added another lawyer to the legal team – which already involves three of the nation's best law firms – last month.

The workers' attorneys last month filed a motion saying no settlement had been reached.

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