Sustained Outrage

freedom aerial

Commercial Photography Services of West Virginia

U.S. District Judge John T. Copenhaver Jr. just issued an interesting ruling in the pending class-action case against West Virginia American Water Co. and Eastman Chemical over the water crisis that followed the January 2014 Elk River chemical spill.

In short, Judge Copenhaver wants both sides to submit additional legal briefs to address the role of Eastman Chemical — which sold MCHM to Freedom Industries — in the water crisis case. Plaintiffs in the case argue that Eastman violated the federal Toxic Substances Control Act, by not properly testing the chemical or warning buyers or the public about potential health impacts, or about possible safety concerns related to the type of storage tanks Freedom used.

Specifically, the judge says:

… The parties should address the facts supporting a conclusion that plaintiffs have suffered an injury, fairly traceable to Eastman’s alleged violation of the Act, which will be redressed by a favorable decision of this court.

Briefing should also consider whether Eastman’s alleged noncompliance with the Act constitutes a “real and immediate” threat of injury supporting injunctive relief.

The additional legal brief from the plaintiffs is due Aug. 2, with any Eastman response due by Aug. 9. You can read the judge’s order here.

 

 

successtopphoto

If you’ve been following the issue of questions that surround who exactly continues to have the liability for DuPont Co.’s C8 pollution (see here, here and here), there’s some pretty interesting news that’s come out of a teleconference Wednesday among the lawyers and the judge in federal court in Ohio — where thousands of cases against DuPont are pending.

It seems that U.S. District Judge Edmund A. Sargus Jr. is becoming increasing concerned — and is finally moving toward ordering DuPont to turn over information that lawyers for the plaintiffs in these cases have demanding, and that they hope might shed some light on the situation.

According to a transcript of the telephonic conference, the judge told DuPont:

… The longer this takes and the more difficult it becomes to get this information, truthfully, the more I’m determined that there is something that needs to be ferreted out here. I hope it turns out to be the big nothing. But I can tell you from long experience in this job, the more things aren’t disclosed, the more suspicious everybody becomes, and I think that’s the situation we’re in right now.

PSC continues to narrow chemical spill inquiry

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Coal Water Pollution

West Virginia American Water Company’s request to further delay the state Public Service Commission’s chemical spill investigation wasn’t the only new filing in the last few days in that commission case. Also just made public is a new PSC order, which indicates clearly again the commission’s intent on keeping this inquiry as narrow as possible.

The new order, posted here, rejects another effort by the group Advocates for a Safe Water System to reopen discovery — the process of legal investigation in the case — prior to the currently schedule PSC hearings in mid-November.

Among other things, the Advocates hoped to reopen discovery so they could pursue more answers to questions raised by recent disclosures in the federal court case over the water crisis — including some remarkable documents that we’ve covered in the Gazette-Mail about the water company’s decision not to close its Elk River drinking water intake in the hours after the spill.

The PSC, though, wasn’t having any of it:

The fact that the parties to this general investigation and the parties to the federal cases examined some of the same subject matter but chose to develop the evidence differently, is largely reflective of the different roles of the two tribunals and the different legal standards governing the respective proceedings. Thus, while ASWS may utilize pertinent information from any source (including the federal cases) for any proper purpose during the evidentiary hearing in this proceeding, the fact that information developed outside this investigation may not be identical to what the parties developed here simply does not justify a wholesale re-opening of discovery, on the grounds that it is “new information” or otherwise.

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Another C8 trial scheduled

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successtopphoto

In the wake of the latest jury verdict against DuPont, there’s a ruling out now that sets what appears to be the next trial date among the thousands of cases pending against the chemical giant in federal court in Ohio.

U.S. District Judge Edmund Sargus Jr. issued this order which sets up the trial schedule in the suit brought on behalf of Kenneth Vigneron Sr. of Washington County, Ohio.  The suit alleges that C8 exposure caused Vigneron to contract including being diagnosed with testicular cancer and hypercholesterolemia.

Sargus scheduled the trial to start on Nov. 14, 2016.

In the meantime, it’s worth noting that shareholders of DuPont and Dow this week approved the huge merger between those two chemical giants, and the group Keep Your Promises DuPont continues to raise questions about this transaction:

Stakeholders want to know how the liabilities will be dealt with once the merger is completed, but beyond that, we need answers about what happens after the company splits into three smaller companies. We have a right to see the separation agreement, and we have a right to see how DuPont, DowDuPont, and any of the final three companies will handle these enormous liabilities. These details are crucial for shareholders, but they are a matter of life and death for thousands of folks in the mid-Ohio Valley.

It is ridiculous that we do not have the basic answers we need as to how our friends and neighbors will be taken care of. It appears that this merger is being carried out with no regard for the human toll it will take on communities in the mid-Ohio Valley and nationwide.

 

 

water intake

There’s a new filing out this morning in the state Public Service Commission’s general investigation of the January 2014 Freedom Industries chemical spill and the water crisis that followed.

In the new filing, posted here, lawyers for West Virginia American Water Co. are asking the PSC to again delay the commission’s formal hearing into the water company’s handling of the crisis.

Basically, water company lawyers are pointing out that the current PSC hearing dates — Nov. 15-17, 2016 — create a pretty serious conflict with the scheduled start of trial in the “Good case” — the water crisis class-action suit pending in federal court. U.S. District Judge John T. Copenhaver has that trial set to begin on Oct. 25.

The water company lawyers explain:

The Company believes that holding the GI evidentiary hearing during the Good trial will be virtually impossible for the Company and its witnesses to manage, and at the very least will impair and prejudice the Company’s ability to participate attentively and fully in both proceedings. The timing overlap is complete, and extends not only to the November 15-17 evidentiary hearing, which should occur during the fourth week of the Good trial, but to the October 28 pre-trial conference in the GI, at which pre-hearing motions presumably will be argued. The overlap also extends to the deadline for rebuttal testimony on September 1, which will compete for many of the same witness and lawyer resources already committed to preparing for the federal trial.

They outline scheduling concerns for both West Virginia American witnesses — including company President Jeff McIntyre — and attorneys, and conclude:

These actual scheduling conflicts will adversely affect the Company’s participation in both cases to its detriment and prejudice, and they constitute good cause to move the remainder of the GI procedural schedule into 201 7. The Commission should acknowledge the demanding federal court processes facing the Company and make reasonable accommodations to minimize the impact of scheduling constraints. There is no deadline for the Commission’s decision in the GI, and none of the other parties is likely to be prejudiced by an extension of the procedural schedule into 2017.

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Study links gas drilling and asthma

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Natural Gas, fracking

A new study out today links natural gas drilling with increased risk of asthma. Here’s the press release from the Journal of the American Medical Association’s Internal Medicine journal:

Residential unconventional natural gas development activity, a process that involves fracking and creates a source of energy used both domestically and internationally, was associated with increased risk of asthma exacerbations in a study of patients with asthma in Pennsylvania.

Asthma is a common chronic disease with nearly 26 million people in the United States with asthma. Outdoor air pollution is recognized as a cause of asthma exacerbations. Unconventional natural gas development (UNGD) has been associated with air quality and community social impacts, such as air pollution from truck traffic and sleep disruption.

Pennsylvania has moved rapidly with UNGD and more than 6,200 wells were drilled between the mid-2000s and 2012.

The release explains:

Brian S. Schwartz, M.D., M.S., of the Johns Hopkins Bloomberg School of Public Health, Baltimore, and coauthors looked at associations between UNGD and asthma exacerbations.

The authors compared patients with asthma with and without exacerbations from 2005 and 2012 who were treated at Pennsylvania’s Geisinger Clinic. The study included 35,508 patients identified in electronic health records.

The authors estimated activity metrics for the four phases of UNGD (pad preparation, drilling, stimulation and production) using the distance from patients’ homes to the wells, well characteristics and the duration of phases.

Between 2005 and 2013, 6,253 unconventional natural gas wells were spudded (the start of drilling) on 2,710 pads; 4,728 wells were stimulated and 3,706 were in production.

The authors identified 20,749 mild (new oral corticosteroid medication order), 1,870 moderate (emergency department visit) and 4,782 severe (hospitalization) asthma exacerbations and matched those to control index dates for comparison.

Patients with asthma in areas with the highest residential UNGD activity had higher risk of the three types of exacerbations compared with those patients in the lowest group of residential activity, according to the study results.

Here’s a link to the study and here’s a story about it that was posted earlier by State Impact.

 

 

 

When Mike Pence came to West Virginia

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Indiana Gov. Mike Pence joins Republican presidential candidate Donald Trump at a rally in Westfield, Ind., Tuesday, July 12, 2016. (AP Photo/Michael Conroy)

Indiana Gov. Mike Pence joins Republican presidential candidate Donald Trump at a rally in Westfield, Ind., Tuesday, July 12, 2016. (AP Photo/Michael Conroy)

This is a guest post by the Gazette-Mail’s political writer, David Gutman:

Indiana Gov. Mike Pence, who Donald Trump chose as his vice presidential candidate on Friday, was in Charleston last month to fundraise for state Senate President Bill Cole, the Republican candidate for governor of West Virginia.

Pence’s Charleston visit was not highly publicized. Among media, only the Gazette-Mail and the Associated Press attended.

Pence spoke to about 70 supporters in a hotel ballroom, touting recent conservative changes in Indiana – right-to-work, regulatory reforms and charter schools.

West Virginia Republicans have put similar policies (save for charter schools) into place since taking control of the Legislature in 2014.

But neither Pence nor the Cole campaign were eager to talk about what Pence was best known for (before becoming a vice-presidential candidate) — passing a controversial “religious freedom” law, another policy that state Republicans would like to mimic.

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WVDEP probe of Antero spill finds … more spills

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DEP Photo Antero Spill Report

Photo from WVDEP

Back in December 2014, inspectors from the West Virginia Department of Environmental Protection went to Harrison County to check out a reported spill at a fracking wastewater processing facility operated by Antero Resources. The company had reported that the spill was contained and that cleanup was complete.

But when WVDEP got there, here’s what they found:

During the inspection, however, WVDEP personnel observed and documented that the reported spill from a leak in the frac tank was in progress, cleanup was not completed, and the wastewater was leaking outside of the dedicated container system.

What’s more:

It was also noted during the inspection that a second source of spillage (Spill Two) was occurring near the western footprint of the Water Process Facility near a small unnamed tributary of Limestone Run, and the soil in the area was dark and had a petroleum odor.

Agency officials said that lab results of a soil sample taken on the eastern bank of the stream (the side where the spill occurred) revealed “elevated levels” of total chloride, total strontium, total barium, and diesel range organics, as compared to a sample on the opposite bank of the stream.

That’s all according to a recent “Consent Order” that Antero has agreed to and that WVDEP officials have released for public comment.

And there’s more … In a follow-up inspection two days later, WVDEP officials:

… Observed that, in addition to the two spills observed and documented during the December 16, 2014, inspection, another spill (Spill Three) had occurred. Further investigation revealed that this spill had not been reported. WVDEP personnel observed another spill (Spill Four) in an area down gradient of the offload manifold covered with straw. Further investigation revealed that a tank truck had spilled its contents during off-loading activities, a spill containment system had not been deployed, the contents had migrated off the pad and onto the ground, straw had been deployed to soak up the contents, the soil was stained black, and the spill had not been reported.

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EPA assurances on Dimock, Pa., water questioned

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Gas Drilling Dimock

Protesters stand in front of the Academy of Natural Sciences in Philadelphia before an appearance by Environmental Protection Agency then-(EPA) Administrator Lisa Jackson Friday Jan. 13, 2012.  Residents of the small northeastern Pennsylvania town of Dimock,  at the center of the political fight over natural gas drilling, joined environmental activists from elsewhere to rally Friday outside a conference on urban environmental issues.   (AP Photo/Jacqueline Larma)

With all of the aggressive public relations from all sides — and the flurry of conflicting statements in political campaigns — it is certainly becoming more and more difficult for the public to understand the ongoing discussion of natural gas drilling’s environmental and economic impacts.

Recall, for example, how the industry sought (and EPA really aided and abetted) to paint a federal report as proof that drilling is “safe,” when actually the report found nothing of the kind.

Thankfully, there are some great journalists out there who continue to work on these stories and cutting through the conflicting claims. For several years, the best among them has been Abrahm Lustgarten of ProPublica, whose work on the issue is archived here.

Today, we have another important story from Abrahm, “Federal Report Appears to Undercut EPA Assurances on Water Safety in Pennsylvania,” which digs again into the issue of drilling’s impacts on the drinking water in Dimock, Pa.:

Since 2009 the people of Dimock, Pennsylvania, have insisted that, as natural gas companies drilled into their hillsides, shaking and fracturing their ground, their water had become undrinkable. It turned a milky brown, with percolating bubbles of explosive methane gas. People said it made them sick.

Their stories — told first through an investigation into the safety of gas drilling by ProPublica — turned Dimock into an epicenter of what would evolve into a national debate about natural gas energy and the dangers of the process of “fracking,” or shattering layers of bedrock in order to release trapped natural gas.

But the last word about the quality of Dimock’s water came from assurances in a 2012 statement from the U.S. Environmental Protection Agency — the federal department charged with safeguarding the Americans’ drinking water. The agency declared that the water coming out of Dimock’s taps did not require emergency action, such as a federal cleanup. The agency’s stance was widely interpreted to mean the water was safe.

Now another federal agency charged with protecting public health has analyzed the same set of water samples, and determined that is not the case.

The finding, released May 24 from the Agency for Toxic Substances and Disease Registry, a part of the Centers for Disease Control and Prevention, warns that a list of contaminants the EPA had previously identified were indeed dangerous for people to consume. The report found that the wells of 27 Dimock homes contain, to varying degrees, high levels of lead, cadmium, arsenic, and copper sufficient to pose ahealth risk. It also warned of a mysterious compound called 4-chlorophenyl phenyl ether, a substance for which the agency could not even evaluate the risk, and noted that in earlier water samples non-natural pollutants including acetone, toluene and chloroform were detected . Those contaminants are known to be dangerous, but they registered at such low concentrations that their health effects could not easily be evaluated. The water in 17 homes also contained enough flammable gas so as to risk an explosion.

Read the whole thing here.

 

 

 

Public ranks water safety concerns high

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Coal Water Pollution

There’s a new survey out from the Kaiser Family Foundation that West Virginia readers may find interesting:

In the wake of the lead crisis affecting drinking water in Flint, Mich., the public now ranks contaminated drinking water among the most serious national health issues, trailing cancer, according to the April Kaiser Health Tracking Poll.

When asked about a series of health issues facing the country, more than a third (35%) identify contaminated drinking water as “extremely serious,” behind cancer (43%) and similar to heroin abuse (35%)  and ahead of major diseases such as heart disease ( 27%) and diabetes (31%).

Overall, women are less confident in the government’s ability to ensure the safety of public services than men are. Three-fourths of women (74%) are not very confident in their state’s ability to ensure the safety of their water, compared to two thirds (66%) of men. Similar gender differences exist on the questions about sewage and electrical services.

Most Americans (70%) say that this month they have been closely following news about unsafe lead levels in Flint’s water, up from March (63%).  More report closely following the terrorist attacks in Brussels and other conflicts involving ISIS (80%) and the 2016 presidential campaign (77%), while slightly fewer say they were closely following news about the Zika outbreak (61%).

Fielded amid news reports about government officials facing charges related to Flint’s contaminated water supply, the poll finds larger shares of the public rating their state government’s efforts to protect the water supply as either “excellent”  (17%) or “good” (37%) than “fair” (31%) or “poor” (14%).  The public rates the federal government less favorably, with more saying it’s doing a “fair” (36%) or “poor” (26%) job than saying it’s doing an “excellent” (7%) or “good” (29%) job.

Designed and analyzed by public opinion researchers at the Kaiser Family Foundation, the poll was conducted from April 12-19 among a nationally representative random digit dial telephone sample of 1,201 adults. Interviews were conducted in English and Spanish by landline (420) and cell phone (781). The margin of sampling error is plus or minus 3 percentage points for the full sample. For results based on subgroups, the margin of sampling error may be higher.