KNOXVILLE, Tenn. - JUST IN: Jury in the Kingston coal ash case has found the case has enough evidence to move to phase two of the lawsuit.
The jury has ruled in favor of the workers and moving the trial forward, finding the contracted company Jacobs Engineering culpable.
Jurors are deciding whether workers at the site of the monument coal fly ash cleanup in Kingston could have suffered harm because of their work conditions. "We're not asking for one penny," said attorney Jeff Friedman during closing arguments to the jury on Tuesday morning. "We just want the opportunity for these workers to have their day in court."
The first phase of the lawsuit includes what lawyers say are 70 workers or their families who've suffered health harms because of exposure to substances in the fly ash. Of particular concern was inhalation of the ash during the Superfund cleanup, which is known to contain toxic substances linked to health dangers.
Plaintiffs testified that Jacobs Engineering managers botched air monitoring, discouraged workers from wearing protective masks and told workers the ash was not harmful. Over the past several years, former workers say they've been suffering from health concerns they suspect are related to their work on the site.
The jury of six women and four men received instructions early Tuesday afternoon to begin deliberating. This follows three weeks of testimony in the federal trial involving dozens of plaintiffs and defendant Jacobs Engineering, the company that earned the federal contract to clean up the site for the Tennessee Valley Authority.
"We have proved that the fly ash did not ever reach levels capable of causing the health effects in this case," said attorney James Sanders in defense of Jacobs Engineering.
The cleanup followed the spill December 22, 2008 of 5.4 million cubic yards of coal ash that was held in storage in Roane County. The spill covered 300 acres in the area near Swan Pond and the Emory River. The fly ash in storage was a by product of burning coal in the nearby power plant. Per the Environmental Protection Agency in its media release about overseeing cleanup, "Coal ash at the site contains arsenic, cadmium, chromium, copper, lead, mercury, nickel, selenium and zinc, which are hazardous substances as defined under Superfund."
Testimony by former workers at the cleanup site included Jeff Brewer, who testified that manager Tom Bock said, "You can't wear a mask."
Jacobs attorney Sanders told the jury that many workers were not allowed to wear protective masks or respirators because they had not undergone a required medical test to qualify them to wear the gear. This countered testimony by multiple workers who said they were in a work climate where they were discouraged from wearing protective gear and even felt they could lose their job if they asked for it.
Multiple workers testified that they saw Jacobs management manipulate air monitoring of workers on the site. They described people tapping or banging on monitors before packaging them up for laboratory tests. Worker Mike McCarthy testified, "...they tampered with those tests. I eye-witnessed it. Those tests were bogus. And I say that under oath."
Sanders told jurors that it seemed workers misunderstood the process involved in handling air monitors and that one tapping process they saw did not mean anything would be inaccurate about the test. He called a tapping process involved a "perfectly innocent act."
If the jury sides with the plaintiffs, they'll be able to return to federal court in a second phase where they can claim specific harms. In a case where Jacobs Engineering argues it complied with a health and safety plan, the plaintiff's attorney told the jury, "There's men and women out there who are hurting. They're sick."
The coal ash spill was cleaned up under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund. However, the EPA notes that it is not on the National Priorities List of Superfund sites. TVA declared cleanup complete there in December 2014. The defense argued repeatedly during the trial that the cleanup area was not a hazardous waste site.