OSHA officials admit to shredding documents in Tennessee Valley Authority coal ash case
After workers in coal ash clean up began filing cases documenting unexplained illnesses, federal agency disposed of documents, a process they say is legal.
Aerial of the TVA plant in Kingston Tennessee, on the Clinch River. An ash dam spill on December 22 2008 resulted in a major environmental issue for the area. (Photo: Karen Kasmauski for Getty Images)
For two months, teams of workers had been toiling around the clock to clean up a colossal spill of toxic coal ash unleashed in East Tennessee when a containment wall buckled, loosing millions of tons of the sludge across the landscape.
They were working unprotected, secure in the knowledge they were safe because the Tennessee Valley Authority repeatedly told them so. But now, an alarm was raised: The coal ash was radioactive, and the workers were in grave danger, warned a complaint filed in February 2009 with the U.S. Occupational Health and Safety Administration, which oversees workplace conditions.
“Employees are working in hazardous conditions at this (Tennessee Valley Authority) spill … overexposure to radiation, overexposure to arsenic, workers without respirators,” the February 2009 complaint said.
By rule, the agency should have shut down the TVA work site and launched an investigation. Instead, OSHA passed along the complaint to TVA.
Two months later, TVA told OSHA there was nothing to worry about: all the workers had been masked and protected as required by federal law, but no longer needed the precautions.
It was a lie.
Now, at least 54 of those workers who cleaned up TVA’s massive spill of radioactive coal ash in Kingston, Tennessee, are dead. Hundreds more are sick.
Sickened workers and survivors of the dead are suing Jacobs Engineering, the global contractor TVA put in charge of the disaster clean-up, in U.S. District Court. Although the workers won round one in the court fight, Jacobs is appealing, arguing the firm was merely following orders from TVA and should enjoy the same immunity courts have long granted TVA as a quasi-governmental agency.
The 6th Circuit U.S. Court of Appeals recently asked TVA to weigh in on the appeal and Jacobs’ bid for immunity. TVA filed a brief with the court on Monday. TVA did not address whether Jacobs should be granted immunity but argued TVA itself remains – despite a 2019 U.S. Supreme Court decision that stripped the utility of immunity in certain situations – immune in the workers’ case.
In the years following the completion of the clean up, OSHA twice said the agency never received a complaint about worker safety at the Kingston site.
Now, the agency is admitting it shredded the file — after workers began filing formal complaints of unexplained illnesses. OSHA says the destruction was legal under its policies and denies the agency was bound by an EPA order on the Kingston spill that required all records be retained through December 2018.
In the dead of night just days before Christmas 2008, the clay wall of a coal ash dump at TVA’s Kingston plant in the Swan Pond community of Roane County came crashing down. Tons of radioactive coal ash — the toxic trash left over when TVA powers up the power grid using coal as fuel — gushed out.
TVA sounded a call for help at union halls in East Tennessee and across the country and within its own workforce. Hundreds answered. When dawn broke, 300 acres of land were smothered in the muck, miles of waterways contaminated and wildlife poisoned but not a single resident had died.
Scientist Paul Prys II was one of the first people to arrive at the disaster site. He’s a specialist in deciphering the dangers an industrial disaster poses to workers and the public and was working under the command of the Environmental Protection Agency.
Two weeks after his arrival, Prys stood atop a mountain of TVA’s coal ash, looking down at a sea of workers coated in the sludge but wearing no protective gear, including masks. The coal ash was giving off radiation at an alarming level, and he was worried.
Prys’ notes show he told EPA On-Scene Commander David Dorian about his radiation fears.
“OSC Dorian was concerned with the readings on top of the (coal ash) dredge cell,” Prys wrote. “(Dorian asked him) to take two more readings of the ash in areas where workers are exposed to disturbed ash.”
So, he did. Radiation levels were even higher. He told Dorian, who, in turn, told him to write a report and send it to TVA. He filed that report Jan. 10, 2009. He and his team left the disaster site the next day.
One month later, the OSHA complaint was filed.
The man who filed it asked OSHA to publicly identify him as “a person who cares.”
“Do NOT reveal my name to my employer,” it stated.
Bill Cochran – executive director of OSHA’s Nashville office – knew the name, employer, phone number and email of the person who filed the complaint. Cochran talked to the man and took notes about what the man said.
“(The man’s) only influence is to help people that are getting poisoned,” Cochran wrote. “(Industry safety information) he has shows respirators must be worn.”
Cochran assigned a case number to the complaint and forwarded it to Tommy Lucas, TVA’s project safety manager at the time. Lucas claimed he launched a full-scale probe a week later.
Lucas said in his report that he interviewed 28 employees, union representatives and supervisors a week after the Feb. 11, 2009, radiation complaint was filed. TVA’s file on the Kingston disaster – a stack of more than a dozen computer discs containing thousands of reports and records – doesn’t contain a single document to verify that.
The Tennessee Lookout located and interviewed 24 of those employees listed in Lucas’ report.
“Never happened,” worker Ron Bledsoe told the Tennessee Lookout when asked whether he was interviewed by Lucas about radiation. The remaining interviewees had similar responses. None had even heard of Lucas.
“If they had said anything to me about radiation, I would have left that job,” worker Ben West said. “I certainly wouldn’t have carried that ash home (on his clothes) to my family.”
Like hundreds of their clean-up colleagues, Bledsoe and West developed illnesses while working in the Kingston ash unprotected. West suffered thyroid cancer and skin ailments. Bledsoe’s lungs were damaged.
TVA radiation claims
Lucas wrote in TVA’s response to OSHA that TVA immediately outfitted workers with respirators after the spill and kept them in respirators until testing revealed they didn’t need them.
“OSHA requires respirators to be worn until exposure levels are known and control measures can be determined,” Lucas wrote in his February 2009 report. “Initially TVA required employees at the ash recovery site to wear respirators.”
There’s not a single record to back up that claim either, and TVA has long conceded publicly it never provided disaster workers masks or respirators at all. TVA continues to insist workers exposed to its coal ash don’t need them.
Lucas told OSHA that TVA tested the coal ash at its own radiological lab days after the spill and determined it was no more radioactive than dirt.
OSHA requires respirators to be worn until exposure levels are known and control measures can be determined. Initially TVA required employees at the ash recovery site to wear respirators.
– Tommy Lucas, former TVA safety manager, as written in a 2009 report
“The radioactive material present is mostly naturally occurring and is similar to what we would normally find in soil in the Tennessee Valley area,” he wrote.
TVA’s coal ash – and all coal ash produced by coal-fired plants – contains technologically-enhanced radioactive material. Dirt does not. The level of radioactive material in the Kingston ash was so high — twice the annual “safe” dosage rate for radiation exposure — that Alabama officials initially refused to accept shipments of it after the spill.
EPA records show TVA sought and won an exemption from Alabama’s rules on technologically-enhanced radioactive material and was allowed to disposed of its ash at a landfill in Perry County, Ala. However, rail car workers who offloaded the Kingston ash in Perry County, Ala., were outfitted with respirators and Tyvek suits, records show, at the insistence of both the EPA and Alabama state authorities, records show.
But none of that radiation information was ever relayed to workers back in Kingston, records prove. Training manuals TVA provided Kingston workers made no mention of radiation or technologically-enhanced radioactive material.
Lucas also claimed in the OSHA response that the author of a study who deemed the coal ash a radiological threat to disaster workers just months after the spill recanted in a follow-up phone call.
That author – renown coal ash testing expert Dr. Avner Vengosh – told the Tennessee Lookout he never heard from TVA after publishing his February 2009 research and stands by his study results today.
Lucas never mentioned Prys or the radiation report Prys sent TVA weeks before the OSHA complaint was filed. The Tennessee Lookout searched TVA’s files for Prys’ report. It isn’t there. It’s also missing from the final report Prys’ employer – TVA contractor Tetra Tech – filed with the EPA.
Asked about that radiation report, Prys said he couldn’t talk about his radiation readings or anything else connected to his work on the Kingston disaster site.
Lucas sent his final OSHA report — declaring TVA innocent of the complaint’s allegations and workers protected as required — to a slew of TVA executives in early April 2009. Lucas’ report landed in Cochran’s inbox at the Nashville OSHA office the same day.
The man who had filed the complaint two months earlier should have been contacted by OSHA and provided the report’s findings. He wasn’t. On June 16, 2009, the man called Cochran.
“He has not received a response,” Cochran wrote.
Cochran sent him a copy. The man called six days later, and he was fuming.
“Unsatisfied with response,” Cochran wrote.
The man repeatedly questioned TVA’s investigative findings. Cochran wrote that he “attempted to answer” the man’s questions.
“He became irritated and refused to talk,” Cochran wrote.
TVA safety claims
TVA, meanwhile, was assuring workers at the Kingston disaster site the dust they were breathing was not radioactive and that OSHA considered their exposure levels to it safe. At the same time, TVA was striking a deal with Jacobs Engineering, the utility’s clean-up contractor, to cover the firm’s legal bills if the coal ash made the workers sick.
Lucas and Jacobs’ supervisor Sean Healey never mentioned any radiation threat when, in May 2009, both refused an EPA request to outfit the Kingston workforce in respirators and Tyvek suits during the clean-up operation, a letter by Lucas in TVA’s files shows.
When disaster workers developed nose bleeds, TVA blamed sinus infections, the utility’s own records and deposition testimony from TVA supervisors shows. When welts and rashes showed up on their skin, TVA blamed dry weather and gave them bottles of skin softening lotion from Wal-Mart.
When workers complained of fatigue and low testosterone, TVA supervisor Dwayne Rushing has admitted in a deposition he mocked them.
When workers complained of shortness of breath, coughing episodes and fainting spells, TVA ignored them. When they asked for masks as protection, TVA supervisor Gary McDonald admitted he refused.
When workers began dying six years into the clean-up operation, TVA did nothing to investigate the safety of the remaining workforce. Neither did OSHA. More than 13 years after the spill, TVA still hasn’t investigated the Kingston workers’ safety and health complaints, despite repeated requests from workers and workers’ widows.
OSHA did send an inspector to the disaster site once – two years after the agency received the February 2009 radiation complaint. A top executive at Jacobs Engineering met him at the gate and gave him a tour. He never interviewed a single worker.
A handful of sickened workers and the survivors of the dead filed a federal lawsuit against Jacobs Engineering in August 2013. OSHA destroyed the file on the radiation complaint nine months later.
The EPA had issued an order in May 2009 that forbade the destruction of any records related to the spill and the clean-up operation for 10 years. That order was still in effect when OSHA destroyed the radiation complaint file.
OSHA: Record destruction legal
U.S. Department of Labor spokesman Eric Lucero contends OSHA was not bound by the EPA’s order, which he said only applied to TVA. Under OSHA’s records retention policy, Lucero said, OSHA should have destroyed the Kingston file in 2012.
Cochran didn’t order the file shredded until 2014. Lucero had no explanation for that. TVA has conceded videos that would have shown the conditions in which the workers toiled were not maintained — in violation of that same EPA order. TVA offered no explanation, including when the videos went missing or under what circumstances.
Asked to provide records to back up Lucas’ claims in the radiation report and to answer questions about that report, TVA spokesman Scott Brooks declined, citing the workers’ lawsuit against Jacobs.
“TVA is not a party in the Jacobs litigation and we will continue to respect the judicial process,” Brooks said.
TVA declined to say when and why Lucas left the agency, citing personnel privacy rules.
In an interview recorded last year, Lucas said he left TVA in 2011, while the clean-up was still underway. He defended the radiation report as accurate but acknowledged workers were exposed to radiation during the clean up.
“It’s obvious that some people were affected now,” Lucas said of the Kingston workforce in an affidavit. “I don’t have much doubt that exposure existed, and it depends on how much fly ash you have and the concentrations.”
Lucas did not return a follow-up phone call this week.
Contractor: TVA gave orders
So far, suing workers have won a preliminary round in their federal court fight against Jacobs, but it could be years before they get a chance to seek damages. Jacobs offered them $10 million in 2020 if they’d agree never to reveal what happened to them at the Kingston disaster site.
Jacobs is now appealing several legal issues related to the workers’ successful phase one verdict, so the lawsuit is on hold. Jacobs has repeatedly denied any wrongdoing in its handling of the clean-up operation.
The firm, via legal counsel, told judges on the 6th Circuit U.S. Court of Appeals last month that Jacobs was merely following orders from TVA in everything the firm did – and didn’t do – in protecting the workforce and should be immune alongside the utility.
Court records show the 6th Circuit panel, in an unusual move and without explanation, notified TVA about Jacobs’ argument and invited the utility’s lawyer to consider filing its own legal argument.
“I am writing because the panel wishes (1) to ensure that the TVA is aware of the case and the issues in it, and (2) to give the TVA an opportunity to file an amicus brief in the case,” the court’s clerk wrote. “The panel has no expectation that the TVA will file an amicus brief in the case. But it does want to make sure the agency has the opportunity to do so if it wishes.”
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