PART I—THE SPILL
At 5 a.m., on December 22, 2008, Ansol Clark woke to a phone call. He needed to get up, the voice told him, and he needed to get up right away. Clark drove construction trucks for a living, and the man on the line was a general foreman named Stan Hill, for whom Clark worked. “Get to Kingston,” Hill said. “They’ve had a blowout down here.”
Clark climbed out of bed and got dressed: blue jeans, down jacket, hard hat, Muck boots. Even at 57, he was a bull of a man, strong from hauling around equipment all day and from spending much of his free time hunting on the Cumberland Plateau. He lived with his wife, Janie, on the outskirts of Knoxville, Tennessee, in a brick home three miles from the farm where he’d been born. Within a half hour of receiving the call, he was pulling his Chevy S10 pickup out of the driveway and headed toward the Kingston Fossil Plant.
He made his way by headlights, following I-40 west out of town. He knew the route well. After a decade crisscrossing North America in a tractor trailer, he’d joined the Teamsters, in 2000, and had spent much of the past five years working at the Kingston Fossil Plant, a coal-fired power station 40 miles outside Knoxville. Built and managed by the Tennessee Valley Authority (T.V.A.), a massive federally owned power company, the Kingston facility was, at the time of its completion in 1954, the largest coal-fired power plant in the world. It burns 14,000 tons of coal a day, powering 700,000 homes across Tennessee and parts of six neighboring states.
With no traffic, Clark reached the plant within 45 minutes. He met Hill in a parking lot, and a few other Teamsters and operators showed up soon after. In a shipping container where they stored tools, they waited for sunrise, eager to see what they were up against.
Clark had something of an idea. Each day, the Kingston plant generated a thousand tons of coal ash, the sooty by-product of burning coal to produce electricity. Much of this ash ended up in an unlined hole in the ground, known as a holding pond. The thing was, Kingston’s “pond” was not so much a pond but a mountain of wet ash, 60 feet tall, covering 84 acres, and built at the confluence of two rivers, the Clinch and the Emory. It was a precarious setup, one made more so by the fact that this six-story mountain of ash was contained by a dike, made not of concrete or steel but of bottom ash, the coarse, dense component of coal ash.
Two years earlier, Clark had helped to repair a minor breach in the dike. When he walked on the ash mountain, the ground beneath his feet had jiggled like a waterbed. He’d once told a co-worker that the dike would fail one day. “I didn’t think it would,” he recalled. “I knowed it would.” Now the day had come.
At first light, Clark and Hill climbed into a pickup and drove up the backside of a large wooded hill that overlooked the coal-ash pond. “As long as I live, I’ll never forget what that looked like,” Clark said.
The first calls to 911 that morning had described the blowout as a mudslide. Area residents couldn’t see what had happened in the dark; they could hear only crashing and popping in the direction of the Kingston plant. In reality, shortly before 1 a.m., in the quiet of the winter solstice, the dike’s north section had collapsed. When it did, more than a billion gallons of coal-ash slurry—about 1,500 times the amount of liquid that flows over Niagara Falls each second—broke forth. A gigantic black wave rushed northward, shaking the earth and booming like thunder. It knocked out power and gas lines. It covered roads and twisted railway. It tore a home off its foundation, and destroyed or damaged 26 houses in all. It downed trees, it buried deer, and it killed at least one dog. As the wave roared ahead, 3 million cubic yards of sludge poured into the Emory River, filling up two backwater sloughs and hurling fish some 40 feet onto the riverbank. The wave died after less than a minute, but smaller slides continued for hours. Now, as Clark surveyed the site, 300 acres lay buried in coal ash—a foot deep in spots, six or more in others.
By sunup, helicopters whirled overhead, as local, state, and federal agencies began to asses the biblical scope of the breach. The spill had killed no one, a miracle by any measure. But at the time, it was anyone’s guess whether someone was buried under the coal ash. The cleanup workers expected to find bodies.
Following the spill, Clark worked for 94 days straight, driving a fuel truck in 14- to 16-hour shifts. The other 900 men and women who took jobs at the cleanup site all logged similar hours, with the work continuing day and night, seven days a week. Some guys slept in their trucks rather than drive home. The breach proved to be nearly a hundred times larger than the 1989 Exxon Valdez oil disaster, in terms of gallons spilled, and it’s now considered one of the worst environmental disasters in United States history. An inspector general’s report later concluded that T.V.A. had carelessly stored the coal ash and ignored warning signs about needed modifications to Kingston’s holding pond that could have prevented the disaster.
All the same, Clark was proud to be part of the cleanup, and the pay couldn’t be beat. On a good year, he might clear $55,000. During the cleanup, he earned six figures, as did many others. The spill had caused serious environmental damage, to be sure. But, for him and Janie, it was an opportunity of a lifetime. They could finally save for retirement; they even bought a new lawn mower. “The only way I can describe it is like winning the lottery,” Janie said.
It proved to be anything but.
PART II—THE LAWYER
One evening, in the late fall of 2012, three men filed into Jim Scott’s office and told him that they were sick. Their names were Ansol Clark, Stan Hill, and Billy Gibson, and they each worked at the Kingston cleanup site. Scott is a hyperenergetic 51-year-old attorney, with a bird’s nest of graying hair. He didn’t work big cases, at least not often; his office was in a low-slung brick building next to an Old Time Pottery and a Burlington Coat Factory, in Knoxville. Raised in nearby Oak Ridge, Scott was a generalist—happy to take on D.U.I.s, low-profile criminal cases, or whatever else walked through the door. “You name it,” he said, “and I’ve been hired to do it, if it involves a trial.” But after two decades in law, Scott had earned a reputation locally for handling toxic-exposure suits, whether involving nuclear fuel or E. coli.
That was how the men had found him.
Scott does not intimidate, in size or disposition. He stands five-foot-eight and has a soft, expressive face; he seldom wears a suit when not due in court. Sitting across a conference table from the men that evening, he listened as they explained that officials with Jacobs Engineering, the construction and engineering firm contracted by T.V.A. to oversee the Kingston cleanup, were, with few exceptions, refusing them dust masks—and their jobs were at risk if they tried to wear one anyway. Now, the men feared, something with their health had gone terribly wrong.
Before the spill, Clark, for one, had taken no medications; didn’t smoke; and, beyond work physicals, hadn’t visited a doctor in perhaps 30 years. But in June 2012, he’d suddenly caught the flu, or so he assumed. “I couldn’t breathe lying down,” he said, “so I had to sleep sitting up because of the wheezing in my lungs.” He felt as though he were being smothered to death. That October, he’d visited a family doctor—who, after running tests, advised that Clark be rushed to the hospital. There, he was diagnosed with congestive heart failure.
“You guys have been drinking too much Oliver Stone Kool-Aid,” Scott recalled thinking as he listened. He’d represented some of the homeowners whose property had been damaged by the Kingston spill. But he couldn’t imagine that any organization, much less one as well-regarded as T.V.A., would ignore requests for basic protective gear. Yet the three men had almost no energy, and their eyes and noses were bright red. Then there was Clark’s health.
In the coming weeks, Scott began to canvass East Tennessee in his Ford Explorer, to talk with more Kingston workers, recruited by Clark and others. He met them at gas stations and at Cracker Barrels, at barbecue shacks and at a Shoney’s. The workers all told him effectively the same thing: Jacobs officials were denying them dust masks, not providing them with doctors, and laying off whoever pushed back. “After about five or six,” Scott said, “I thought this might really be going on.”
When not visiting with the workers, Scott started to dig into studies about coal ash. He considers himself a libertarian, or almost one anyway: “I’m not an aggressive environmentalist by any stretch of the imagination.” As such, he wanted to rely on studies that bore no trace of “tree-hugging.” One of the first that he discovered was by Avner Vengosh, a Duke University professor. In January 2009, Vengosh had collected samples at the Kingston spill site and concluded that the coal ash contained arsenic, mercury, and radium—in levels high enough to pose health risks if airborne. And, by 2010, the ash often was. In the summers, it would swirl and form dust devils 60 feet tall.
One evening, not long after Scott read the Vengosh report, a worker named Mike McCarthy stopped by his office. A heavyset guy from Long Island, McCarthy had suffered from chest pains, and his testosterone had nose-dived, as had many others’. Having grown suspicious of T.V.A. and Jacobs, McCarthy had started discreetly filming videos on his cell phone. He showed one to Scott.
In it, McCarthy approaches a Jacobs safety supervisor named Chris Eich and complains that his sinuses have been acting up. McCarthy then asks whether he’d be signing his job’s “death warrant” if he wore a dust mask. At first, Eich blames the pollen in the air. But after McCarthy asks again, Eich tells him, “Don’t hang yourself with your own cock.”
“At that point, I got something,” Scott said. “This is damn true, and I’m taking these cases.”
One day last February, Scott recalled much of this to me in his current office, in downtown Knoxville. He goes weeks without stopping by the place, preferring to work from home late at night or early in the morning. “I’ve got a little ADD,” he said, “so it breaks up some monotony.” But when he does show up, as he did that day—dressed in an olive polo, pleated khakis, and clear oval glasses—he tends to bounce from one room to the next, rambling about ideas he has for cases, University of Tennessee basketball, two-headed snakes, or whatever else pops to mind. These days, though, Jim Scott talks mostly about coal ash.
Since 2013, Scott has, by sheer force of will, dragged forward a civil-action lawsuit on behalf of now some 300 former Kingston workers. The suit alleges that Jacobs Engineering failed to provide a safe work environment for his clients, with dire consequences. By Scott and his team’s best count, nearly 40 former Kingston workers have died as a result of having worked at the site. And the number looks sure to rise, with another 300 having fallen ill. “This makes Erin Brockovich and the hexavalent chromium look like Sesame Street,” Scott said.
By taking on Jacobs, Scott and his small team are, by extension, also taking on T.V.A., which was created as part of the New Deal and has since become the nation’s largest public utility, operating six coal-fired power plants, three nuclear plants, and 29 hydroelectric dams. It earns $11 billion in annual revenue and employs 10,000 people. What’s more, some of the country’s largest law firms are defending Jacobs. For years, Scott, meanwhile, worked on the case largely alone, on a contingency basis. As Janie Clark put it, “They have million-dollar law firms, and we’ve got Jimmy.”
PART III—THE CLEANUP
Across the U.S., there are some 400 coal-fired power plants, and each year, they produce about 100 million tons of coal ash. In 2008, as now, T.V.A. and other utilities were not required to treat this coal ash. “All they had to do,” said Elizabeth Southerland, a former senior E.P.A. official, “was pour it into these big ponds”— typically bare holes in the earth—“then just hope that the ponds never leaked or broke.” Studies suggest that 90 percent of these ponds do leak and contaminate groundwater, endangering human health. What set the Kingston plant apart was that its pond just happened to explode.
The spill made national news. From the outset, T.V.A. insisted that, though coal ash dominated the landscape, it posed no threat to people. For the ash to cause harm, “you’d have to eat it,” said Barbara Martocci, a T.V.A. spokeswoman, in a statement the week of the spill. “You have to get it in your body.” Ansol Clark, like many workers, took T.V.A. at its word. Each night, for the four years that he worked at the cleanup site, he arrived home with coal ash caked to his boots, his clothes, and his face. He thought little of it.
But many residents of nearby Kingston were less sanguine. From the ridges surrounding the spill site, they could see coal ash hanging in the air, and they would find it dusted over their yards and gardens. In October 2009, at the First Baptist Church in Kingston, a public meeting was held. Addressing the crowd, Anda Ray, a T.V.A. senior vice president, acknowledged the potential dangers of the ash, and stressed that the health of the workers was a “top priority,” since they were “working right in the ash.” She also admitted that, when she arrived home each day, she checked her boots and her vehicle for coal ash, not wanting to track in the hazardous material.
Documents, first obtained by the Knoxville News Sentinel, later showed that top T.V.A. officials knew as far back as 1981 that coal ash contained high levels of radioactive material. The E.P.A. also knew of the dangers. In a 2009 60 Minutes segment, Leo Francendese, the E.P.A.’s on-scene Kingston coordinator, told the journalist Lesley Stahl that coal ash can cause harm. “Breathing it, that’s dangerous,” he said. (Neither Ray nor Francendese responded to interview requests.)
These concerns were not shared with the workers, who were busy loading the coal ash onto trains, to be shipped to a landfill in Alabama. When they pulled up for their 5 a.m. shifts, the air would sparkle in their truck headlights, owing, they later learned, to the fine metal particles suspended in the dust. For preshift safety meetings, they met at a house near the spill site that served as a makeshift office for Jacobs and T.V.A. officials. Addressing the workers from the deck, Tom Bock, the top Jacobs safety officer on-site, repeatedly said that the workers could eat a pound of fly ash—the dusty component of coal ash—each day and be fine. That’s how safe it was. Bock, a full-cheeked guy with half-rim glasses, repeated the spiel frequently enough that it became a joke among the workers: Don’t worry, man. You can eat a pound of ash a day—just don’t inhale it!
Soon after the cleanup got underway, however, some workers began to feel sluggish and fall short of breath on walks from the parking lot to the work site. Others coughed up black jelly and couldn’t keep their noses from running. They called it “the Kingston Crud” and initially blamed it on the long hours and grind of the work. Then sluggishness led to dizzy spells, then to nosebleeds, then to worse.
Jeff Brewer, a dump-truck driver and part-time Baptist preacher, started to have blackouts after a year and a half on the job. The spells tended to hit as he waited in his dump truck for another load of ash to move. “All I know is that I’d be sitting there waiting in line, looking around,” he said, “and the next thing I know, I’d be out.”
The workers were put in an impossible position. Many of them hailed from rural communities outside Knoxville. By one estimate, half hadn’t finished high school. A number needed help to read. With the Great Recession in full swing, they’d be hard-pressed to land a job elsewhere, much less one that paid as well. And these were family men, with children and wives and parents to care for. So, from 2009 to 2011, they said little. “Nobody would talk about nothing out there,” Mike McCarthy said. “Everyone was job scared.” Because, to them, it seemed that whoever complained, or got hurt, or caused problems, would be furloughed and never brought back.
It wasn’t until Jim Scott started to poke around, in late 2012, that some workers began to speak up. On their lunch breaks, they’d pieced together that they shared many of the same health issues—perhaps most troubling, an inability to maintain an erection. One worker named Billy Isley, a buff Metallica fan in his mid-40s, saw his sex drive plummet, so much so that his wife, Lena, started to wonder, Is he screwing around on me? In May 2013, Isley visited a doctor. “Come to find out,” Lena said, “his testosterone level was, like, 54”—less than that of some women. (The normal range for adult males is 250 to 900.) Tests also confirmed that Isley’s blood contained traces of arsenic, lead, and mercury. “When I looked at the results,” Lena said, “I about died.”
That same month, some 25 workers requested respiratory gear or dust masks from Jacobs. They were denied. In a deposition, Tom Bock later said that T.V.A. had evaluated on-site air-monitor records and found no link between the workers’ symptoms and the coal ash. The workers suspected another reason for the denial. “They were afraid the public would see us in those masks,” Jeff Brewer said.
In time, Scott discovered an email that suggested as much. It was sent in October 2009. In it, Sean Healey, a top Jacobs official, instructs Bock not to use the word “decon” (for “decontamination”) in reference to the cleanup. “The site control efforts we undertake are primarily for the benefit of public perception,” Healey writes, “and given what we know about fly ash are not based on any type of occupational health risk.” (Bock, in a deposition, claimed that he didn’t know what Healey meant by this. Healey declined an interview request.)
In the summer of 2013, Scott happened upon a site-wide safety and health plan for the Kingston cleanup. Signed off on by E.P.A., T.V.A., and Jacobs officials, the plan listed 23 constituents of coal ash, including arsenic, lead, and beryllium—a Long Island Iced Tea of poison. “[T.V.A.] had it basically hidden on the internet,” Scott said of the plan. “The workers didn’t know it existed.” Scott handed out copies of the plan whenever workers stopped by his office. “These people had a right to know what was going into their bodies and what might harm or kill them,” he said. “[Jacobs] made them feel like they could walk on water and be fine, but the fact of the matter is that they walked into their deathbeds.”
PART IV—THE LAWSUIT
In August 2013, Scott filed a complaint in U.S. District Court in Knoxville against Jacobs Engineering Group on behalf of 50 Kingston workers and their families. In the U.S., federal agencies such as T.V.A. enjoy immunity from lawsuits, with few exceptions. Since Scott couldn’t sue T.V.A. directly, Jacobs was, in a way, the next best thing.
He was still pursuing the case largely alone. In the run-up to filing the complaint, he’d worked past 10 most nights, while still trying to spend time with his two sons. “The stress level was just absolutely unbearable,” he said. His marriage had shown signs of strain. Still, Scott said, “I didn’t think the law should tolerate this kind of activity.”
He soon encountered a problem. A recent court ruling concerning property damage had determined that two T.V.A. contractors would share in its sovereign immunity regarding the Kingston spill. Jacobs’ lawyers, in turn, filed a motion to dismiss Scott’s suit, arguing that Jacobs should also be immune. Given the evidence Scott had gathered, he assumed that there was little chance that the judge, Thomas Varlan, would side with Jacobs. But, in September 2014, Varlan did just that—issuing an opinion that effectively killed the suit.
Scott received the opinion by email. When he opened it, he was heartbroken as well as embarrassed. He knew that he had only one move left that could possibly save the case, and it was a long shot.
Over time, Scott had grown close with Ansol and Janie Clark. When he called and told them about the judge’s decision, he promised to take the case to the Sixth Circuit Court of Appeals. Statistically, he had only a 16 percent chance of winning. But if he didn’t advocate for the workers, likely no one else would, not with an opponent as formidable as Jacobs. One of the top 30 largest government contractors in the U.S., the company earns some $12 billion in annual revenue and employs 80,000 people. Scott knew that he was in for a fight. He just didn’t yet know how desperate that fight would become.
ON MARCH 5, 2015, Ansol Clark was in his bedroom, getting dressed to feed his pet turkey outside. Two years earlier, he had retired early from Kingston, owing to poor health. As he dressed, his vision suddenly blurred. He grabbed ahold of his bed. Then blackness. He awoke at Parkwest Medical Center in Knoxville, as an emergency crew worked to keep him alive. He’d suffered a stroke, and was subsequently diagnosed with polycythemia vera, a rare form of blood cancer linked to environmental exposure to radium, a particle found in coal ash.
“That was the worst day of our lives,” Janie said. They’d met in night school, shortly after Clark had returned from a stint in the Navy; Janie, not yet 18, sold movie tickets at a theater downtown. Some 40 years later, the couple still adored each other. Janie had never seen the beach before, and, after years of planning, they’d intended to vacation in coastal North Carolina once Clark retired. But, after the diagnosis, Janie refused to travel far from her husband’s Knoxville hospital. “He’s never going to be the same,” she said. “Our lives are never going to be the same. We had hopes for a future together, to live out our golden years. That won’t happen now.”
A month later, Scott flew to Cincinnati to appeal his case before the Sixth Circuit. He’d never argued there before, and if he lost, the workers stood no chance of receiving the money they needed to cover their mounting medical bills. Adding to Scott’s anxiety, he and his wife had recently decided to divorce, under messy circumstances. The night before his day in court, he watched the Reds play the Brewers. The next morning, he dressed in his nicest suit—dark navy and custom-tailored—and walked to the courthouse.
To curry favor with juries, Scott portrays himself in court as a simple country lawyer. But in the Sixth Circuit, he had to make his case before a panel of three judges, so he couldn’t rely on homespun charm. That morning, there were maybe 15 people in the courtroom. As he waited for his turn, he felt as if he were a kid again, afraid to cause a disturbance in church.
When his time came, he stood at a lectern before the judges. His argument centered on the idea that, because Jacobs had allegedly acted outside T.V.A.’s authority and knowingly broken state and federal laws, it shouldn’t be immune. He didn’t get off to a smooth start: Four minutes into his allotted 15, a judge asked him a clarifying question. As Scott responded, the judge interrupted—“Is the answer yes or no?” “Yes, yes sir!” Scott replied.
Besides this minor hiccup, the judges responded favorably to Scott’s points. As he left the courtroom, other lawyers who’d been listening told him that he had a good shot at winning. But he knew that the odds suggested otherwise.
Over the next week or two, as Scott awaited the Sixth Circuit’s decision, he tried to occupy himself with other cases; he typically juggles 100 to 150 at various stages. Besides that, he said, “about the only thing you can do is pray.” The Clarks, meanwhile, listened, over and over, to Scott’s oral argument, the audio of which had been posted online. They’d call other plaintiffs and put the phone up to a speaker, to let them hear parts. “We didn’t have any idea whether we were going to win,” Janie said.
After a month, the decision arrived. Scott’s secretary came into his office and delivered the news—the judges had sided with Scott. The case was still alive. “I was just like, Oh my God, I did it!” he said.
“WE HAD HOPES TO LIVE OUT OUR GOLDEN YEARS TOGETHER,” JANIE SAID. “THAT WON’T HAPPEN NOW.”
Janie Clark was in her kitchen when the phone rang. “Jim doesn’t express a lot of happiness,” she said later, “but he was so happy when he called. He said, ‘We won! We won! We won!’ ” For the Clarks, the news was a rare cause for celebration. “We knew right then that the case was going somewhere,” Janie said. On the phone, she thanked Scott for all he’d done. Scott, in turn, apologized for everything that they had had to endure. And, with a jury trial still to come, he knew that more lay ahead.
IN THE WEEKS following Scott’s winning appeal, a few dozen more workers approached him about being added to the suit. To help carry the case forward, Scott recruited three other Knoxville attorneys: John Dupree, Tyler Roper, and Keith Stewart. They soon began to depose Jacobs officials and the workers. The cleanup had concluded in the spring of 2015. The trouble was that, though the workers had taken new jobs, their health was still deteriorating drastically.
One weekend, a few months after Scott argued before the appeals court, Mike Shelton, a 51-year-old truck driver, visited a health clinic at his wife’s urging. He’d been coughing up blood and had breathing problems. An X-ray discovered a spot on his lungs—cancer. That July, he underwent surgery to remove the tumor and part of a lung. Before the doctors sedated him, he told his wife, Angie, “You be strong.” He never fully regained consciousness and died of complications days later.
Scott was at his office when he received the call. He knew that the workers were sick, but he hadn’t realized how little time some of them had. Shelton’s case was particularly upsetting. When Shelton died, his widow had no children or other family to turn to. Angie had been a homemaker, and now, for the first time in her adult life, she’d have to provide for herself, in a tiny outlying town with little besides fast-food joints and a Piggly Wiggly grocery. “My life was devoted to him,” Angie said of her husband. “I don’t know who I am without him. I never dreamed I would be here left alone.” Each night, she texted Scott prayers, blessing him for his work.
Within months of Shelton’s death, Billy Isley, the buff worker with low testosterone, noticed a lesion on his face that quickly doubled in size. He’d already started to cough up blood, and the cough only worsened. One night, three years later, his wife, Lena, heard a thump in their bathroom. She found him lying face-down, with blood covering the floor and smeared across the toilet and the bathtub. She rushed to him. When she turned his head, “the blood just comes pouring out all over,” she said. Mixed among it were fine black particles. “The first thing I thought of was the stupid coal ash,” she said. Isley died in her arms before paramedics arrived, smiling at her a final time before foaming at the mouth.
In time, Lena suffered three strokes, which she attributes to touching and washing her husband’s ash-covered clothes. Mike McCarthy’s 3-year-old daughter needed a blood transfusion; his son has lung problems. One of Jeff Brewer’s daughters developed digestive issues. Brewer is a devout Christian, but he struggled to forgive Jacobs and T.V.A., as his faith instructed he ought. He often thought about Christ’s persecution: “While hanging there on that cross, he said, ‘Father, forgive them. They know not what they do.’ ” That, Brewer said, was the problem with T.V.A. and Jacobs: They knew exactly what they were doing.
PART V—THE TRIAL
On the morning of October 16, 2018, Jim Scott put on a dark, cheap suit. He never dressed too sharply for trial; he never wanted the jury to think that he was different from them. Nearly six years had passed since Ansol Clark and the other workers had first shown up at his office, and, in the year leading up to the trial, the case had become Scott’s world. Now the day had finally arrived in which Jacobs would have to reckon with its handling of the cleanup.
Scott met a few lawyers from his team at their office, then walked the few blocks to the courthouse. He was confident, but the stakes still felt impossibly high. Some 20 workers had already died, and Scott feared that Clark might soon be among them. Janie had recently asked Scott to deliver the eulogy at Clark’s funeral, whenever the day came. It was tough to tell how much time he had. He struggled to rise out of bed some mornings; he had dizzy spells; his mind slipped. He and Janie nonetheless insisted on sitting in the gallery throughout the trial. They felt they needed to.
The U.S. District Court in Knoxville sits on the third floor of a high-towered brick building. As Scott entered the courtroom that morning, he made a point to shake hands with the defense lawyers, hoping to avoid a contentious trial. Jacobs was represented by James F. Sanders and a team from the Nashville firm Neal & Harwell. A Vanderbilt grad, with flowing silver hair and a silver mustache, Sanders had previously defended Exxon in the Valdez oil-spill cases. Moreover, he’d trained under the attorney James F. Neal, who’d successfully defended Ford Motor in suits over the design flaws in its Pinto subcompact.
Scott took his place at a wooden counsel table. He doesn’t lack confidence in a courtroom: “I’ve had judges tell me I was the best jury-trial lawyer that has been in their court.” Even so, he’d recruited Jeff Friedman, a veteran Birmingham litigator, to lead the trial and to deliver the opening statement. Scott sat between Friedman and Gary Davis, an environmental lawyer, who, along with Friedman, had done substantial work to pull together expert and fact witnesses.
The trial would be broken into two phases. The first would determine whether Jacobs had failed to protect the workers and potentially harmed their health. If the workers won, a second trial would then determine how much in damages they would receive.
Standing before the jury for the first time, Friedman explained that the cleanup had moved at a record pace, but only because T.V.A. had incentivized contractors to ensure that it did. Jacobs, for one, stood to earn $1.5 million on top of its $60 million fee. But, Friedman said, the air-monitoring devices that had been on-site presented Jacobs with a problem. The results, had they been accurately recorded, would have shown that the workers were exposed to dangerous levels of coal ash, which would have required that extra, time-consuming precautions be taken. To avoid this, Friedman said, Jacobs officials tended to deploy the air monitors when it was wet outside, when less fly ash was airborne.
In the defense’s opening statement, Sanders fired back. On-site E.P.A. officials, he said, had time and again signed off on reports affirming that the cleanup was being carried out safely. And he pledged that the trial would prove that the levels of coal ash at Kingston were incapable of sickening the workers.
Over four weeks, 32 witnesses testified. A key moment came when a former Kingston worker named Danny Gouge told the jury that Tom Bock, Jacobs’ on-site head of safety, had once told him, “Man, if these people knowed what was in this ash, they’d quit.” Moreover, the workers had sometimes worn portable air monitors; Gouge, who’d been friendly with Bock, testified that he had seen Bock hit the monitors against a table—knocking out the coal ash and thus manipulating the results.
The workers weren’t alone in testifying against Jacobs. A former T.V.A. safety coordinator named Robert Muse testified that he saw Bock alter or destroy air-monitoring results, in violation of the law. He also said that he’d once heard that Bock had ordered some dust masks be removed from the site. According to Muse, when he confronted Bock, Bock told him that dust masks weren’t “an image we wanted to put out to the public.” Muse said that he took his concerns about Bock to T.V.A. and union officials, but this led nowhere.
Bock undoubtedly proved a disaster for the defense. Throughout the trial, people saw him roll his eyes when sickened workers hobbled into the gallery. On the stand, he claimed, “We never told anybody fly ash was safe.” Yet he also admitted that he’d told the workers that they could safely eat a pound of fly ash a day. “It was an analogy,” he said. At one point, Friedman had Bock read a part of his deposition, in which he said, in effect, that the most important document on-site was not the health and safety plan but his paycheck. (Bock declined interview requests but wrote in an email, “There have been many false accusations and much misinformation published about worker protection, but I think the Kingston Cleanup safety team did a great job.”)
In week three, Jacobs called a surprise, last-minute witness: William Cheung, an engineer for Mesa Labs, a company that makes portable air monitors. On the stand, Cheung said that tapping out the air monitors wouldn’t affect their results. When cross-examined, Cheung was unwavering, but he conceded that if someone banged an air monitor against a table “technically, yeah…I’m sure something will fall from the filter.” Cheung couldn’t confirm, however, whether his company’s air monitors were used at Kingston.
On November 6, closing statements began. Before a packed gallery, Friedman recounted key moments from trial, referring to blown-up photos of the workers who’d testified. He recalled how Jacobs officials had demanded air-filtration systems for the trailers in which some of them had worked, to ensure that they weren’t breathing in coal ash.
Then, for the defense, Sanders insisted that, according to the E.P.A., “this was not a hazardous waste site,” and that there was no way, based on the air-monitor results, that the coal ash was dangerous. The plaintiffs’ case, he added, was based in “alternative reality.” (Sanders did not respond to interview requests.)
At 2 p.m., Judge Varlan dismissed the jury to deliberate, then recessed the court at 6 p.m. Scott and his team felt relieved just for having finished the trial. But when they returned to the courthouse the following day, Keith Stewart, for one, wore a sickened look.
Shortly before noon, the jury returned with its decision. To reach a verdict, the jurors had to check “yes” or “no” to 12 questions, accepting or rejecting whether Jacobs’ actions could have possibly sickened the workers with leukemia, lung cancer, and coronary artery disease, among other illnesses. Both parties stood for the verdict. For Scott, all sound fell away, just as the cheering crowds had when he played high-school football. As a courtroom deputy took the verdict form, Scott could feel the workers sitting behind him in the gallery. He thought of Ansol and Janie Clark and all the workers who’d sat through the trial, and he thought of those who hadn’t, like Mike Shelton, three years dead.
Twelve “yes” replies in a row.
Scott clenched a fist. A tear formed in his eye as Friedman hugged him. In the gallery, some of the workers quietly sobbed.
The Clarks, unsure of when the jury would return, had missed the reading of the verdict, but they were following the news at home. When Janie learned the results, she ran into the living room, where Clark was sitting in his armchair. “I was screaming,” she said. “I was jumping up and down like a cheerleader.” Clark joked that he turned flips. “We’ve seen the best of humanity and the worst of humanity,” Janie said. They had hung on, she said, because Scott had given them a reason to.
PART VI—THE WAIT
On December 22, 2018, ten years to the day since the Kingston disaster, 200 people, many of whom had assisted in the cleanup, including Ansol Clark, gathered at soccer fields that now occupy part of the former spill site. A day earlier, Clark had planted a white cross in the ground near the entrance, bearing the words “First Responders Gave All.” Janie snapped photos. “To T.V.A. and Jacobs, these men’s lives were not worth even one penny—just expendable,” she said later.
Though Scott’s team had won the first trial phase, the workers would have to wait until the second was decided to receive damages. At least two truck drivers in attendance that day had matching sores on their faces that they attributed to coal ash. Many other former workers coughed or limped. Jeff Brewer, the part-time preacher, was among them. “What they’ve done to us, it angers me,” he told me, pointing toward the Kingston plant, a half mile away. He now has hypertension, low testosterone, obstructive lung disease, and mild brain damage. He’s one of the fortunate ones to have health insurance; some 40 percent of the plaintiffs don’t. But Brewer worries that, should his health decline further, he could be fired from his current job, at Holland Freight, and lose coverage.
Standing at the edge of the soccer fields, Scott addressed the crowd. He recounted how the workers had stepped up in the face of disaster, to the benefit of the community. “That’s a great American story,” he said. He expressed remorse for the way it had ended.
Since the spill, operations at the Kingston plant have remained largely unchanged. In 2015, the E.P.A. introduced new rules on how coal ash must be stored, reacting, in part, to the Kingston disaster. In doing so, the agency also confirmed 157 cases in which leaky coal-ash sites had harmed or potentially harmed human health. But in July 2018, the E.P.A., now under the Trump administration, rolled back parts of these regulations, which would have required power plants to monitor and line leaking coal-ash ponds.
“I DON’T KNOW WHO I AM WITHOUT HIM.
I NEVER DREAMED I’D BE HERE LEFT ALONE.”
Scott has spent the months following the December ceremony preparing for the next phase of trial, which will likely commence in early 2020. To litigate it, Jacobs hired the attorney Theodore Boutrous, who has defended Apple, CNN, Uber, and Walmart. “There has been no finding of liability in these cases or that any of the alleged injuries are the result of exposure to coal ash, let alone caused by anything Jacobs did,” Boutrous wrote in an email. “Jacobs strongly believes that when all the evidence is presented, it will vindicate Jacobs’ stellar reputation for safety.”
T.V.A. has similarly admitted no wrongdoing. It contends that the coal ash did not pose health concerns, according to experts, and that it was transparent throughout the cleanup process. “T.V.A. has acknowledged the constituents in coal ash for decades, including trace amounts of radium,” said Scott Brooks, a T.V.A. spokesman. “Coal ash is not considered a hazardous waste by the E.P.A., and is handled and stored as such.” T.V.A. has also defended its ongoing relationship with Jacobs. In February, the Knoxville News Sentinel revealed that T.V.A. had reached an agreement with Jacobs to help cover damages from the workers’ lawsuit, depending on the trial’s outcome, and would pass on the cost to its customers.
T.V.A. falls partially under the jurisdiction of the House Transportation and Infrastructure Committee. In an email, Representative Peter DeFazio, who was elected committee chairman in 2019, promised to inquire further into T.V.A.’s handling of the Kingston cleanup, with a hearing scheduled for September. “We are committed to holding T.V.A. accountable, especially as it concerns worker and public safety,” he said. “We will not hesitate to press for answers just as our Committee did in the months immediately following the 2008 coal ash spill, which helped spur reforms in how T.V.A. handles its coal ash.”
The Kingston cleanup had cost T.V.A. a billion dollars. Scott’s team estimates that, should a jury rule in the workers’ favor, it could cost Jacobs and T.V.A. $3 billion more. Scott’s team declined to comment on the cut that it would take, but contingency fees typically range from 30 to 40 percent in cases of this nature. And more lawsuits seem inevitable. In April, the Supreme Court ruled against T.V.A. in a separate case. In 2013, a fisherman had been killed, and nearly decapitated, when the boat he was riding in collided with a power line that T.V.A. workers were raising from the bottom of the Tennessee River. The court’s decision stripped T.V.A. of automatic sovereign immunity. The ruling, Scott said, “is gigantic for the next two to three decades.”
For now, though, Janie and Ansol Clark know that, with Jacobs sure to contest the outcome of the next trial, any hope of justice is likely years away. And should it come, it’ll hardly suffice for the damage that Jacobs and T.V.A. have wreaked on their lives. In March, for their anniversary, rather than go out to eat, Janie cooked Ansol’s favorite meal—fried chicken, gravy, mashed potatoes, biscuits, green beans. “I may not have another anniversary with him,” she said. “I’ve been honored to be married to this man for 47 years. I don’t know any other life. Everything I remember, he’s been here with me by my side.” Coal ash had taken much from her and Clark, but at least it couldn’t take that. ♦
J.R. Sullivan is a senior editor for Men’s Journal.
This story appears in the September 2019 print issue, with the headline “Dirty Work.” Read an update here.