DAY ONE: Workers allege fraud in Kingston coal ash cleanup trial

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KNOXVILLE, Tenn. (WVLT) - Breathing problems, hypertension, even cancer risk. These and more health concerns are at the center of a federal court case about worker safety that occurred as a result of the Kingston coal ash cleanup.

A former field safety coordinator at the TVA Kingston Fossil Plant Fly Ash Superfund site testified that managers intentionally botched air monitor readings. These readings were supposed to be part of safety protocol for cleaning up more than 5 million tons of coal ash spilled in Roane County in 2008.

The safety worker, Robert Lee Muse, Jr., was the first witness called in a case consolidating the claims of 70 different workers involved in the cleanup project managed by Jacobs Engineering. They claim their health was at risk because of exposure to toxic elements in fly ash, a byproduct of burning coal. They also claim that Jacobs was negligent and fraudulent in not properly informing them of the dangers, protecting them with safety masks or keeping accurate air monitor readings.

Fly ash is known to contain substances toxic to people, such as heavy metals. The defense argues that the danger to humans only happens above certain exposure levels, and that the cleanup site was safe for workers.

The case began Tuesday morning with the selection of jurors: six women and four men. Then attorneys gave their opening statements before the first witness took the stand. His cross examination is scheduled for Wednesday morning.

The attorney for the plaintiffs, Jeff Friedman, alleged that with more than $40,000,000 at stake in the Jacobs contract for the Tennessee Valley Authority, the company put productivity incentives above worker safety.
"It was a terrible price to the workers they represented," said Friedman.

Attorney James Sanders argued for Jacobs Engineering that the company did follow safety rules. He pointed to 5 1/2 years of air monitoring at the Superfund site, appealing to jurors to look at the evidence. Sanders repeatedly showed documents with signatures by state and federal managers, saying those officials signed off on good air quality for the workers, and that Jacobs was not singularly responsible for monitoring the air.

"It was like going to a very nasty beach every day...blowing what looked like gray sand out of your nose," is how Muse described working at the site along the Emory River in 2010 and 2011.

Muse testified that his job was to distribute five to eight personal air monitors to workers for a day of air test results. He said that at first, he chose places that looked dusty to place monitors on workers. He testified that initial pollution readings were high. But then, he said his boss, a safety manager for Jacobs, told him to place the monitors instead in places with the lowest likelihood of dust, such as the wet truck washing area or on a worker sitting inside the cab of a truck.

When questioned by the plaintiffs' attorney about the process of retrieving the air monitors from workers at the end of the day, he was asked if the manager tapped the devices on something. Muse answered, "I would call it more of a banging against the side of the counter." He said it appeared the dust was being shaken out before the monitors were sealed up to go for laboratory assessment.

Sanders said in his opening statements that personal air monitors on workers were only one method of checking the air. He noted that ambient air monitors detected air quality 24 hours a day, and that overall, Jacobs followed rules about using monitors.

Plaintiffs also allege Jacobs did not give workers proper safety equipment such as masks or respirators when working around fly ash. The lawsuit even accuses Jacobs of allowing a threatening atmosphere in which workers would be afraid to use safety equipment. Muse testified that safety managers told him safety equipment would give the public the appearance that the ash might be dangerous. He said that while masks were initially available to workers in a tool shed, they were eventually removed.

Muse testified that among other safety education given to workers, he never witnessed safety education about the dangers of inhaling the fly ash dust. Instead, he said a Jacobs manager told others, "That you could literally eat a pound of that fly ash and it wouldn't hurt you."

Sanders reacted to this commonly repeated quote about eating fly ash in his opening argument by saying, "That was a gross exaggeration to make a point." Sanders also showed jurors a copy of a safety handbook that he said included a mention of dangerous substances in the ash. He said, "The question is 'what level is dangerous and how do we keep it from being dangerous?'"

Muse did admit to being let go from his post after another manager found him napping in a company vehicle. He said this was because he suffers from sleep apnea. Muse is a licensed paramedic with years of experience in the medical field. He now is in a different line of work. When asked why he doesn't work in safety anymore, Muse answered, "I honestly feel like I didn't do my due diligence to find out more about the fly ash...and say something early on while I was at the site."

Those involved expect the court case could last a few weeks. The federal lawsuit asks for damages for "physical injury, pain and suffering, mental anguish, increased risk of disease, fear of disease, medical expenses, medical monitoring, and compensatory damages in any amount or amounts fair to be determined by a jury at trial."

The Environmental Protection Agency defines fly ash as "a very fine, powdery material composed mostly of silica made from the burning of finely ground coal in a boiler."

In December 22, 2008, a storage area gave way near the TVA Kingston Fossil Plant at Swan Pond Road in Harriman and spilled approximately 5.4 million cubic yards of the ash over about one square mile of land and water. Home and land owners have already been able to receive compensation for damages from the spill. TVA claimed that its major cleanup work was done around the end of 2014. TVA reported spending more than a billion dollars on the cleanup project. It sent 41,000 rail cars of ash to a landfill in Alabama. TVA reports taking 1,500 samples of sediment to confirm the river was finally clean.

Suspected toxic substances in fly ash include lead, mercury, cadmium, chromium, arsenic and selenium. These are all possible threats to human health.

The trial is scheduled to continue the rest of the week.