TOSHA clears Impact Plastics of wrongdoing in deadly flood, urges emergency training

Impact Plastics Inc. officials exercised reasonable diligence in dismissing employees and directing them to leave the Erwin, Tenn., site as flood waters rose from Hurricane Helene on Sept. 27, 2024, says the Tennessee Occupational Safety and Health Administration (TOSHA).

Five employees and a contractor were swept away and died in tragic events that followed.

Their deaths weren't work related, however, and no citations are recommended by TOSHA, which released its nine-page investigation summary on April 2.

TOSHA investigators interviewed witnesses, reviewed surveillance footage and spent time at the Impact Plastics site, which was located along I-26 near the Nolichucky River on a street called South Industrial Drive.

The investigators also gathered information from media reports and weather records, according to Chris Cannon, spokesperson for the Tennessee Department of Labor and Workforce Development, which includes TOSHA.

"After considering the evidence, TOSHA determined that company management exercised reasonable diligence in dismissing employees and providing them sufficient time to leave the facility safely. Because work operations had stopped and employees had left the building, TOSHA has concluded the tragic deaths of the Impact Plastics employees were not work-related and therefore do not fall within its jurisdiction," Cannon said in a news statement.

TOSHA found no evidence that employees were threatened with termination or forced to work beyond a safe evacuation point, the investigation summary says.

Employees were instructed to leave about 10:51 a.m. when evacuation routes were still accessible, the report says. Most employees successfully left via one of four available routes.

"Witnesses and evacuated employees could not clearly explain why some individuals remained on or returned to South Industrial Drive," the report says, adding that federal and TOSHA rules and standards only apply in situations "where work relatedness" is established.

The Nolichucky River already was swelling from heavy rains that saturated soil and filled streams and rivers prior to the remnants of Hurricane Helene dumping more rain across northeast Tennessee and western North Carolina.

On Sept. 27, when workers arrived to Impact Plastics from 5-7 a.m., the weather was overcast with some rain. They began their shifts.

About 9 a.m., managers and other personnel had a routine meeting. They got emergency cell phone alerts from the National Weather Service at 9:14 a.m. and 9:20 a.m. that flash flooding was possible.

Flood water started accumulating in the Impact Plastics parking lot between 10 a.m. and 10:30 a.m. Employees began moving their vehicles to a higher elevation on South Industrial Drive.

About 10:39 a.m., the Impact Plastics site lost power. Company officials said they told production staff to leave about 10:51 a.m. and had bilingual managers deliver the message to non-English-speaking employees.

Some employees told investigators they made the decision to leave on their own.

"None of the interviewed individuals reported that they were told they would be punished or have their employment terminated for leaving Impact Plastics Inc. during this time," the investigation summary says. "Individuals reported taking different actions from this point forward."

By 10:51 a.m., two evacuation routes had already been created on South Industrial Drive by personnel from a nearby business.

For one route, a fence was dismantled to a grassy area by the westbound lanes of I-26.

For the other route, a small tractor owned by a neighboring business was used to make a path up an embankment to nearby railroad tracks.

"An individual reported they successfully evacuated by using the route from South Industrial Drive to the railroad tracks by driving a small passenger vehicle that was not four-wheel drive," the investigation summary says.

Other employees stayed near their parked vehicles.

"Explanations included that individuals on South Industrial Drive did not believe the flooding would intensify, they were too fearful to drive through water, or that they felt unable to leave by vehicle or on foot," the investigation summary says.

Meanwhile, inside Impact Plastics, managers and office personnel were trying to preserve business information and prepare the building for the flooding emergency. These five individuals left the building about 11:40 a.m.

At this time, 25 employees of Impact Plastics had successfully evacuated, the TOSHA report says.

Ten other employees, one independent contractor and a semi-truck driver were still on South Industrial Drive in front of Impact Plastics. They stood near passenger vehicles and the flatbed trailer of the semi, which was loaded with spools of yellow pipe from a nearby PolyPipe USA facility.

About 12:18 pm, personnel from a neighboring business and one employee of Impact Plastics evacuated by vehicle, using the excavated road to the railroad tracks.

"These are the last known successful evacuees from the South Industrial Drive area the day of September 27," the investigation summary says.

The flooding quickly intensified and by 12:35 p.m., passenger vehicles parked on South Industrial Drive began to float away.

Individuals climbed onto the flatbed trailer of the semi-truck.

About 1 p.m., the floodwaters pushed debris into the cab portion of the semi-truck. The force of the water caused the cab of the semi-truck to jackknife and rotate counterclockwise. The driver and an Impact Plastics employee climbed out of the truck cab and made it onto the flatbed trailer at about 1:11 pm.

The water continued to rise and enter the area containing the yellow pipe spools where individuals stood.

About 1:36 pm, the semi-truck and trailer were pushed by the floodwaters against a tree only to be carried again by the current.

"Individuals attempted to climb further up the spools. At approximately 1:41 p.m., floodwaters forced the semi-truck and flatbed trailer into another large tree. This collision twisted the semi-truck and flatbed trailer violently and caused the yellow spools of pipe to become disconnected from the flatbed trailer. Individuals held on to the yellow pipe spools as spools separated and were dispersed by the current of the floodwaters," the report says.

The semi-truck driver and five Impact Plastics employees were carried downstream about half a mile and came to rest on debris. They were later rescued by helicopter.

The others five Impact Plastics employees and an independent contractor died in the floodwaters.

The report concludes: "The tragic events that occurred after employees were dismissed and evacuated the work site are not work related."

The victims were Johnny Wayne Peterson, Rosa Andrade, Bertha Mendoza, Sibrina Barnett, Monica Hernandez and Lidia Verdugo.

In October, Peterson's family filed a $25 million wrongful death lawsuit against the injection molding business and Gerald O'Connor Jr., its owner and CEO.

O'Connor's attorney, Stephen Ross Johnson with the Knoxville, Tenn.-based law firm of Ritchie, Johnson & Stovall, P.C., declined to comment on what the TOSHA findings could mean for that case.

Johnson issued a statement that Impact Plastics officials have cooperated with the agencies investigating the flood. He stressed two findings.

"The facts and the truth are now known, and according to the official investigation by Tennessee OSHA, 'Impact Plastics Inc. exercised reasonable diligence in dismissing employees and directing them to leave the site during this emergency,'" Johnson said. "Critically, and contrary to what was reported by some in the media, Tennessee OSHA 'found no evidence that employees were threatened with termination or forced to work beyond a safe evacuation point.'"

The company will continue to play a vital role in Erwin's flood recovery, Johnson also said.

"Impact Plastics and O'Connor continue to concentrate on seeing to the needs of members of the Impact Plastics family and grieving over the wonderful people who were lost in the flood. Mr. O'Connor is focused on rebuilding Impact Plastics for the benefit of the employees, the customers and the community," Johnson said.

Although no citations are planned, TOSHA recommends that Impact Plastics officials take steps to minimize the possibility of similar events occurring.

The agency doesn't have a rule or standard that requires employers to develop a severe weather emergency plan or provide training to employees, so it makes recommendations.

The suggestions for Impact Plastics include developing a site-specific emergency plan that addresses flooding and then training employees and managers to recognize potential hazards.

All personnel should participate in weather emergency drills specific to each type of severe weather event that may occur at the site, TOSHA recommends.

"Inherent delays posed by some forms of weather emergencies should not result in delays to evacuate the site when necessary," the report says.

The Tennessee Bureau of Investigation also has an on-going investigation into the deaths.