The EPA first created rules regulating coal ash impoundments in 2015 after a dike collapsed flooding embankments and the Emory River near Harriman, Tennessee. Coal ash slurry was contained in a pond, above. (Greenpeace photo)

After 10 years of litigation, workers who were forced to work without personal protection to clean up the Tennessee Valley Authority’s massive coal ash spill at its Kingston Fossil Plant in 2008 have reached a settlement in the case.

TVA’s disaster clean-up contractor Jacobs Engineering posted a one-line notice Monday on its website affirming that the global corporation has reached a monetary settlement with the more than 200 workers who filed suit over their treatment.

No notice of settlement has yet been filed in U.S. District Court, so the details of the deal remain unclear. Workers have rejected at least three prior settlement offers including an offer in late 2021 by Jacobs of $35 million.

What’s also unclear is whether Jacobs will follow through with a 2015 demand that TVA cover its legal bills and settlement costs. Jacobs and TVA brokered a deal just months after the Dec. 22, 2008, spill, in which TVA agreed to indemnify the contractor in any claims of poisoning by coal ash.

Jacobs invoked that indemnity agreement after Kingston disaster workers began filing lawsuits alleging they had been sickened by the radioactive waste after being forced to work in it without respiratory or skin protection.

More than 50 of those workers have died since the coal ash cleanup operation and more than 150 are sick. A federal jury in 2018 sided with the workers, ruling that Jacobs breached its contract with TVA and its duty to protect those workers. Jacobs has filed numerous appeals since then but lost each one.

Only one appeal remained — a question of law posed to the Tennessee Supreme Court last year. That question had not yet been answered when, earlier this year, Gov. Bill Lee appointed Dwight Tarwater, Jacobs’ chief counsel in the Kingston case, to the state Supreme Court to replace retiring Justice Sharon Lee. Soon after Lee tapped Tarwater for the post, attorneys on both sides of the Kingston case filed a stay with the state Supreme Court — the first clue a settlement might be in the works.

The death toll among Kingston disaster workers continues to rise. Last week, Kingston disaster worker Tommy Johnson died. He had collapsed three weeks earlier after attending a memorial service for his fellow deceased colleagues. His funeral is set for Friday.

Testimony in the 2018 federal trial revealed that managers with both Jacobs and TVA repeatedly told workers coal ash was safe enough to eat and refused to provide them protective gear, including masks. When workers began pressing for respiratory protection, Jacobs’ safety manager Tom Bock ordered masks stored at the disaster site destroyed to prevent workers from wearing them, testimony showed.

Coal ash contains 26 cancer-causing toxins, heavy metals and radioactive material, including radium, lithium, selenium, molybdenum, arsenic, lead, cobalt and uranium. Initial testing in January 2009 by an independent firm showed the Kingston coal ash was six to eight times more radioactive than surrounding soil.

But training materials provided by both TVA and Jacobs to Kingston disaster workers never mentioned the radiological threat coal ash posed or provided a full list of dangerous ingredients in the waste. Instead, the training materials stated the only ingredients of concern in the ash were arsenic and silica.

Just two months after the spill, the Occupational Safety and Health Administration received a complaint that the Kingston workers were being exposed to radiation via coal ash without proper protective gear. But OSHA did not investigate the complaint.

Instead, OSHA alerted TVA to the complaint and allowed the utility to investigate itself. TVA, in turn, submitted a report to OSHA, falsely claiming workers had been provided protective gear in the first few months of the spill. OSHA took no further action. After workers filed suit, OSHA destroyed the file on the complaint — without explanation and outside its normal records retention policy.

Independent testing conducted in 2020 by Duke University of the Kingston coal ash — the byproduct of burning coal to produce electricity — showed the waste contained radioactive material at levels three to five times higher than reported by TVA to the public, the Environmental Protection Agency and the Tennessee Department of Health.

Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: [email protected]. Follow Tennessee Lookout on Facebook and Twitter.