DuPont lawyers lose bid to keep jury in first C8 case from hearing about the Tennants’ cattle farm

September 1, 2015 by Ken Ward Jr.

successtopphoto

As the mid-September trial date approaches for the first of the personal injury cases against DuPont over the company’s C8 pollution, there’s been some new media interest in the story, from both The Intercept and from The Huffington Post.  Lengthy stories by both included discussion of what got a lot of this whole thing out in the open in the first place — the controversy over what happened to the Tennant family’s cattle — and issue that has now come up again in the ongoing litigation.

Here’s The Intercept:

It may have been luck too — good or bad, depending on what side of the case you’re on — that led the attorney Robert Bilott to sue the DuPont company. In any case, he was an unlikely person to take on one of the world’s largest chemical companies. A partner at a corporate firm in Cincinnati, Bilott had spent his first eight years as an attorney on the other side of the table, defending large companies like DuPont. But in 1999 a cattle farmer named Wilbur Tennant came to see him. Tennant told him that DuPont had bought land from his family that was adjacent to his farm, for what the company had assured him would be a non-hazardous landfill, according to a letter Bilott later filed with the Environmental Protection Agency. Soon, a stream his cows drank from started to run smelly and black, with a layer of foam floating on the surface. Within a few years, hundreds of Tennant’s cattle had died. Bilott had no way of knowing at the time that what seemed like a straightforward case would lead to one of the most significant class-action lawsuits in the history of environmental law.

And here’s the Huffington Post:

The Tennant clan farmed the fertile patch of soil around the home place for more than a century. In the 1950s, Jim’s father ran off, leaving his wife to look after nine cows, two mules, one hog and five children. But the family got by, eating turtle and muskrat and peddling anything it could grow or forage—wild watercress and elderberries in the spring; ginseng and lima beans in the summer; hay and apples in the fall. Their West Virginia farm eventually grew into a 700-acre operation, with more than 200 head of cattle and enough corn to pack a 35-foot silo. Jim and his wife Della bought a house on an adjoining plot of land and swapped the outhouse for an indoor toilet.

Then, in the early 1980s, DuPont, which ran a sprawling chemical plant called Washington Works in nearby Parkersburg, approached the family about buying some acreage for a landfill. The Tennants were wary of having a waste dump so close to the farm. But DuPont assured them it would only dispose of non-toxic material like ash and scrap metal, and so they agreed to sell.

Shortly after the deal closed, Jim and Della, whose home abutted the new landfill, say their two young daughters started wheezing and hacking. Worried about the girls’ health, they moved to a house in town. But most of their relatives stayed, and Jim and Della continued hunting game and eating beef grazed on the farm.

Della took her daughters’ Girl Scout troop there to catch tadpoles in the creek and make plaster molds of deer tracks. Then, at some point in the mid-1990s, the water in the creek turned black and foamy, and the family began finding dead deer tangled in the brambles. The cattle started going blind, sprouting tumors, vomiting blood.

“One time this cow was coming down the road and it was just bellowing, the awfulest bellow you ever heard,” Della told me. “And every time it would bellow, blood would gush from its mouth and its nose. It just bellowed and bellowed and blood just kept flying, and then it would fall down, and it would try to get up … We didn’t have anything to shoot it with, so we just had to watch it until finally the cow bled to death.”

DuPont lawyers understandably would prefer that a jury in the C8 cases not hear anything about the cattle. They filed a motion to have such evidence excluded, arguing, among other things, that “any statement or suggestion that C8 has caused or causes cattle disease or cattle death is unsupported and would be misleading to the jury and unfairly prejudicial to DuPont.” The plaintiffs responded that they planned to offer the cattle evidence only in response to DuPont’s claims that it has at all times acted “proactively” with regard to C8 and public safety.

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The latest on C8 pollution

August 20, 2015 by Ken Ward Jr.

pfoastucture

There’s a new report out this morning from the Environmental Working Group about the dangers of the DuPont Co. toxic chemical C8. Here’s the first bit of the group’s press release:

Newly published research shows that even very small doses of the Teflon chemical PFOA in drinking water pose a more serious threat to public health than previously thought. EWG’s report on the research, released today, shows that federal guidance on safe levels for PFOA is hundreds, even thousands of times too weak. 

You can read the full report here.  The report cites, among other things, this paper published this month by Harvard University’s Philippe Grandjean and University of Massachusetts at Lowell’s Richard Clapp, which concludes:

Perfluorinated alkyl substances have been in use for over sixty years. These highly stable substances were at first thought to be virtually inert and of low toxicity. Toxicity information slowly emerged on perfluorooctanoic acid and perfluorooctane sulfonate. More than thirty years ago, early studies reported immunotoxicity and carcinogenicity effects. The substances were discovered in blood samples from exposed workers, then in the general population and in community water supplies near U.S. manufacturing plants. Only recently has research publication on perfluorooctanoic acid and perfluorooctane sulfonate intensified. While the toxicology database is still far from complete, carcinogenicity and immunotoxicity now appear to be relevant risks at prevalent exposure levels. Existing drinking water limits are based on less complete evidence that was available before 2008 and may be more than 100-fold too high. As risk evaluations assume that untested effects do not require regulatory attention, the greatly underestimated health risks from perfluorooctanoic acid and perfluorooctane sulfonate illustrate the public health implications of assuming the safety of incompletely tested industrial chemicals.

Meanwhile, in federal court over in Ohio, there was another in a series of important rulings (see here and here)  in advance of the mid-September and late-November start of trial in the first two of the thousands of personal injury cases pending against DuPont.  This particular ruling, issued on Wednesday by Chief U.S. District Judge Edmund A. Sargus Jr., denied DuPont’s motion for summary judgment on the issue of punitive damages in the cases brought by Carla Marie Bartlett and John M. Wolf.

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EPA set to announce new methane regulations

August 18, 2015 by Ken Ward Jr.

Natural Gas, fracking

Word is out that the U.S. Environmental Protection Agency will propose later today new rules aimed at reducing methane emissions from the nation’s booming natural gas industry.

UPDATED: Here’s our Gazette-Mail story on the EPA announcement:

The Obama administration is proposing new standards that are part of a broader strategy to require the nation’s booming oil and gas industry to reduce its emissions of heat-trapping methane by 40 percent to 45 percent.

The New York Times reports:

The Obama administration is expected to propose as soon as Tuesday the first-ever federal regulation to cut emissions of methane, a powerful greenhouse gas that contributes to global warming, by the nation’s oil and natural-gas industry, officials familiar with the plan said on Monday.

The proposed rule would call for the reduction of methane emissions by 40 to 45 percent over the next decade from 2012 levels, the officials said. The proposal was widely expected, after the Environmental Protection Agency said in January that it was working on such a plan.

According to The Wall Street Journal:

The move is part of a broader regulatory agenda Mr. Obama is pursuing as he seeks to make addressing climate change a legacy of his time in the White House. Earlier this month, the EPA issued final rules cutting carbon emissions from power plants 32% by 2030 based on emissions levels from 2005.

Tuesday’s announcement reflects the Obama administration’s middle-ground approach toward the oil and gas industry. The Interior Department said Monday it has issued a permit to Royal Dutch Shell PLC to drill for oil and natural gas in the Arctic Ocean, providing the company a long-sought victory and angering environmentalists who say the move runs counter to Mr. Obama’s efforts to address climate change.

Meanwhile, with the onset of the fracking boom, concerns over methane, a potent greenhouse gas, have grown within the administration. Methane has a warming effect on the planet more than 20 times greater than carbon dioxide, according to the EPA.

We’ve talked about this issue many times before on this blog (see here, here, here, here and here), most recently here.

Also today, there’s a new study out on the issue, being reported by the Times this way:

A little-noted portion of the chain of pipelines and equipment that brings natural gas from the field into power plants and homes is responsible for a surprising amount of methane emissions, according to a new study.

Natural-gas gathering facilities, which collect from multiple wells, lose about 100 billion cubic feet of natural gas a year, about eight times as much as estimates used by the Environmental Protection Agency, according to the study, which appeared on Tuesday in the journal Environmental Science and Technology.

The newly discovered leaks, if counted in the E.P.A. inventory, would increase its entire systemwide estimate by about 25 percent, said the Environmental Defense Fund, which sponsored the research as part of methane emissions studies it organized.

EPA is planning to announce its new rules at noon …

The Utica Shale: Big deal or big hype?

August 12, 2015 by Ken Ward Jr.

drill
Earlier this summer, Gazette-Mail business writer Andrew Brown produced a detailed look at how West Virginia’s oil and gas industry uses partition lawsuits to assemble the mineral rights it wants to pursue natural gas drilling in the Marcellus Shale region. Now, Andrew has spent some time examining the recent hype over the Utica Shale and provides us with this guest blog post:

Based on reports, one can be forgiven for believing that West Virginia is about to witness an immediate surge in gas exploration in the state’s northern counties. Over the past month, coverage of the gas industry has been fueled by a new study by West Virginia University that suggests the state may be sitting above another one of the world’s largest gas reserves – the Utica shale, a formation located several thousand feet below the now well-known Marcellus.

When the study was unveiled in Canonsburg, Pa., on July 14, numerous stories were written that played up the Utica’s potential and the possibility of the formation overtaking the Marcellus as the primary target of gas companies.

The State Journal wrote:

While the Marcellus Shale basin has been getting most of the credit for West Virginia’s recent natural gas boom, a recent West Virginia University study suggests the Utica play could soon fall under the spotlight.

Data from the Utica Shale Play Book Study, a two-year geological study conducted by the Appalachian Oil and Natural Gas Research Consortium, suggests the Utica Shale play is much larger than original estimates, and its size and potential recoverable resources are comparable to the Marcellus play, the largest shale oil and gas play in the U.S. and the second largest in the world.

The Exponent Telegram quoted Doug Patchen, the director of the Appalachian Oil and Natural Gas Research Consortium, the WVU group that led the study:

 “It certainly has that potential. Right now, we’re estimating it has an equal potential, at least, to the Marcellus. It’s just a matter of time,” Patchen said.

With all of this hype over the formation, it should come as no surprise that gas companies – some of which helped to fund the study — took the opportunity to emphasize their plans to drill their first Utica wells in West Virginia. On July 31, the EQT officials emphasized the results of a Utica test well in Pennsylvania and reiterated their interest in drilling another well in Wetzel County later this year. As the State Journal reported:

EQT Corp.’s test well in the Utica Shale in western Pennsylvania has produced more dry natural gas than expected, so now the question is whether the Utica test well it plans to drill in Wetzel County soon will deliver the same results.

And less than two days after the study was released, Antero Resources jumped on the opportunity to announce its first exploratory well in Tyler County. The Exponent Telegram predictably linked the company’s announcement to the WVU study:

News of Antero’s first Utica well in the Mountain State comes as new research suggests the gas play contains far greater reserve than originally thought. On Tuesday, researchers released the results of a West Virginia University-led study that concluded the Utica holds 782 trillion cubic feet of technically recoverable natural gas and another 1,960 million barrels of oil.

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Senate confirms new CSB chair, member

August 10, 2015 by Ken Ward Jr.

Important news from last week about the U.S. Chemical Safety Board. It’s there in the list of Senate confirmations:

Chemical Safety and Hazard Investigation Board

Kristen Marie Kulinowski, of New York, to be a Member of the Chemical Safety and Hazard Investigation Board for a term of five years.

sutherlandVanessa Lorraine Allen Sutherland, of Virginia (right), to be Chairperson of the Chemical Safety and Hazard Investigation Board for a term of five years.

Board member Rick Engler (who has been acting as chair of the panel) issued this statement:

I congratulate Vanessa Sutherland on her Senate confirmation as the new Chairperson of the U.S. Chemical Safety Board (CSB) and Dr. Kristen Kulinowski on her Senate confirmation as CSB Board Member.   I look forward to working closely with them on the important work of the CSB to help prevent chemical incidents.  Both bring broad expertise and experience to their new positions.  Both were confirmed on August 6.

Let’s hope that somehow, someway, this action will get the board back on track to serve its vital function for workers and communities.

Chemical Safety Board won’t explain changes in recommendation status for AL Solutions

July 23, 2015 by Ken Ward Jr.

Plant Explosion

Fireman battle a fire at AL Solutions after an explosion rocked the plant Thursday, Dec. 9, 2010 in New Cumberland, W.Va. Three workers were killed. (AP Photo/The Review, Michael D. McElwain)

The new leadership over at the U.S. Chemical Safety Board does a lot of patting itself on the back about what it says is “a new emphasis on public transparency and engagement.” And those who continue to criticize the management of the board under now-ousted Chairman Rafael Moure-Eraso love to point to how they believe Moure-Eraso was too secretive about some things the board was doing.

And in fact, the new leadership’s plan to have regular, open-to-the-public business meetings provides an opportunity for lots of transparency, with public updates on investigations, and open discussion among board members and various other stakeholders about important worker and community safety issues.

But if the public isn’t able to see the important materials that board members are basing their discussions and votes on, that’s not really transparency.

The most notable example from yesterday’s board meeting was, as reported in our Charleston Gazette-Mail story,  was the refusal to make public the 42-page report detailing the urgent recommendations from CSB investigators for DuPont’s La Porte, Texas, plant.

There was another example, though, buried in some of the documents about the board meeting — and it’s an important one for West Virginia. The CSB’s list of “notation votes” (that is, votes not discussed or taken in public meetings) includes one that indicates the board considering changing the status of the AL Solutions response to its recommendations following an investigation of the December 2010 fire and explosion that killed three workers at the company’s plant in New Cumberland, Hancock County.

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More oil train data – but not for the public

July 23, 2015 by Ken Ward Jr.

Train Derailment

Survey crews in boats look over tanker cars as workers remove damaged tanker cars along the tracks where several CSX tanker cars carrying crude oil derailed and caught fire along the James River near downtown Lynchburg, Va., Thursday, May 1, 2014.   (AP Photo/Steve Helber)

We talked yesterday about the continuing concerns local residents have over crude-oil train traffic through the Kanawha Valley, and about the latest word from the Federal Railroad Administration on disclosure by railroads to local officials important data about their shipments of this potentially dangerous cargo.

Among other things, we pointed out that the FRA made it clear that railroads like CSX are indeed supposed to continue filing crude-oil shipment disclosures with state emergency response commissions.  But as Curtis Tate at McClatchy reported:

Of the states on the CSX crude oil network that McClatchy sought information from, only Virginia reported receiving an update in the year between June 2014 and June 2015, and that was a week after a CSX oil train derailed and caught fire in February near Mount Carbon, W.Va.

Rob Doolittle, a spokesman for CSX, said the railroad continues to be “in full compliance” with the emergency order. He added that the railroad recently sent new notifications to the affected states, “regardless of whether there was any material change in the number of trains transported.”

When we first checked in with the West Virginia Division of Homeland Security and Emergency Management about this yesterday, spokesman T.D. Lively told us that the State Emergency Response Commission had not received any updated material from CSX since an initial notification back in May 2014.

After hearing that from the state, we contacted CSX, sending an email to Rob Doolittle, the same spokesman quoted in Curtis Tate’s story. Initially, Doolittle told us:

We sent updates earlier this month to all states where CSX operates. I’m double-checking to see if there’s any information about the status of the report to West Virginia that is relevant.

Not too long after that, we heard back from Lively with an update from the state:

The SERC just received a call from CSX saying that we should be receiving additional information from them regarding shipments via mail in the next few days.

And then, after that, we got this note from CSX’s Rob Doolittle:

Following your query we checked with the West Virginia Division of Homeland Security and Emergency Management and confirmed that they had not received the report we mailed earlier this month. We have made arrangements for the report to be delivered tomorrow.

It’s worth noting, though, that regardless of what CSX sends to the state, the public isn’t likely to learn much from it. Lively says state officials are sticking by their position that most of what CSX provides is exempt from disclosure under the state Freedom of Information Act:

This does not change our position on the release of information marked confidential or proprietary by the railroad carrier. The information is made available to appropriate first responders in an unredacted form currently and will continue to be so. As more information becomes available we will release it to first responders.

Crude oil trains: Concerns continue about rail safety

July 22, 2015 by Ken Ward Jr.

Oil Train Rules

In this Feb. 17, 2015 file photo, crew members walk near the scene of a train derailment near Mount Carbon, W.Va.   (AP Photo/Chris Tilley, File)

Five months after the huge crude oil train derailment and fire out in Mount Carbon, W.Va., citizens are still concerned about what could have — and what still could — happen as these rail shipments through communities around the country continue. As Matt Murphy reported for the newly consolidated Charleston Gazette-Mail:

Only about 10 residents attended an information session at the Glen Ferris Inn regarding the ongoing remediation efforts surrounding February’s CSX oil train derailment in Mount Carbon.

However, the residents who did attend expressed concern about oil trains continuing to pass through the area in addition to worries over existing oil remnants.

CSX officials made no formal presentation during the meeting. Instead, residents and members of the public were invited to ask questions of railroad representatives at tables set up along the perimeter of the inn’s meeting room.

One Boomer resident, Kay Slayton, said she had concerns over exposure to benzene and other petroleum-related chemicals following the spill, as well as oil remnants in the area.

Slayton’s home is directly across the Kanawha River from the derailment. She and her husband, who were home at the time, witnessed the derailment and subsequent fires occur and evacuated to a nearby elementary school where she works.

“It was a very scary sight,” she said. “I saw something coming down the hill and it was on fire.”

At the same time, the Federal Railroad Administration issued an important notice today, as Curtis Tate reported for McClatchy:

The U.S. Department of Transportation warned railroads that they must continue to notify states of large crude oil shipments after several states reported not getting updated information for as long as a year.

The department imposed the requirement in May 2014 following a series of fiery oil train derailments, and it was designed to help state and local emergency officials assess their risk and training needs.

In a press release, Transportation Secretary Anthony Foxx said:

Transparency is a critical piece of the federal government’s comprehensive approach to safety.  DOT is committed to making certain that states and local officials have the information they need to prepare for and respond to incidents involving hazardous materials, including crude oil.  The Emergency Order that requires these notifications still stands, and we expect railroads to fully comply.

Curtis Tate explained:

In spite of increased public concern about the derailments, railroads have opposed the public release of the oil train information by numerous states, and two companies sued Maryland last July to prevent the state from releasing the oil train data to McClatchy.

The rail industry fought to have the requirement dropped, and it appeared that they got their wish three months ago in the department’s new oil train rule.

But facing backlash from lawmakers, firefighters and some states, the department announced it would continue to enforce the notification requirement indefinitely and take new steps make it permanent.

There have been six major oil train derailments in North America this year, the most recent last week near Culbertson, Mont. While that derailment only resulted in a spill, others in Ontario, West Virginia, Illinois and North Dakota involved fires, explosions and evacuations.

Some readers may recall that West Virginia officials — after initially appearing to be willing to rethink their initial secrecy on this issue — refused a Freedom of Information Act request for data they were given about CSX’s crude oil shipments in West Virginia.

 

Will the Chemical Safety Board survive?

July 21, 2015 by Ken Ward Jr.

Kulinowski

Obama administration Chemical Safety Board nominee Kristen M. Kulinowski testifies during a Senate confirmation hearing last week.

It’s growing increasingly difficult to see a light at the end of the tunnel that the U.S. Chemical Safety Board finds itself in these days. Here’s one of the latest takes on things, from the San Francisco Chronicle:

The tiny federal agency that has urged big reforms in how California regulates oil refineries is in disarray.

To some, the strife at the U.S. Chemical Safety Board — the 40-person authority charged with investigating industrial accidents and recommending ways to improve safety — bears strong resemblance to the headlines from developing nations:

Its leader, seen by critics as an autocrat, is forced out before his term is up. His successor takes charge in what detractors call a backroom maneuver and moves quickly to consolidate power, ordering loyalists of the ousted regime removed from their posts with the help of armed guards.

“What is going on at the Chemical Safety Board is a little slice of the eastern Ukraine here in Washington, D.C.,” said Jeff Ruch, executive director of the Public Employees for Environmental Responsibility, a group that advocates for government workers.

Meanwhile, he said, the board’s mission of pushing regulatory reform is languishing. “The industrial infrastructure is getting older, and we’re not doing anything about it.”

Engler_RichardLRNow, when I interviewed the CSB’s acting chairman, Rick Engler, a few weeks ago, he had some solid things to say. But in some ways, the jury is probably still out. For example:

—  Chairman Engler said that he disagrees with efforts by chemical industry lobbyists to narrow the scope of the board’s investigatory authority, but he also emphasized his belief that the board itself needs to narrow its priorities.  “We are a very small agency and we can be most effective by focusing on a small number of issues,” Engler told me.

— While he says that we are currently at a critical time of the Obama administration when it comes to any potential chemical safety reforms, Chairman Engler also does what so many people in the labor community appear willing to do: Let the heads of agencies like the Occupational Safety and Health Administration off the hook for not more aggressively using their rule-making authority these last nine years.  Engler noted his own view is “there isn’t any point” in criticizing OSHA chief David Michaels for his agency’s failure to move beyond the talking stage on the CSB’s “Most Wanted” safety reform: A new federal standard on deadly combustible dust. “The bottleneck is above his level and it’s unfortunate that we have a system that puts so many hurdles in front of urgently needed standards,”  Engler said.

The most impressive thing I heard from Chairman Engler, though, came when I asked him if he agreed with the conclusions of now-ousted Board Chairman Rafael Moure-Eraso in a New York Times op-ed piece that the United States is facing “an industrial chemical safety crisis.” Chairman Engler said:

I think there is a continuing crisis and under my watch I don’t want to wake up in the morning and hear about the next disaster where we have multiple facilities. I really genuinely believe that enough is enough.

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Does transparency really matter in W.Va.?

July 17, 2015 by Ken Ward Jr.

Gov. Earl Ray Tomblin

It seems unlikely that most West Virginians understand much about prevailing wage — what it is, why we have it, or how it’s calculated. About the only clear explanation that the media has provided came not from a statehouse reporter or business journalist, but from my friend, op-ed writer Rick Wilson:

Beginning in the 1930s, state and federal legislators, many of whom were Republicans, took steps to ensure that the wages paid on these projects didn’t undermine the local standard of living by granting contracts to fly-by-night low-wage contractors who often performed shoddy work under unsafe conditions.

This involved surveying the local labor market to determine what typical compensation was for given types of skilled labor. The wages that “prevailed” in a given area for nonresidential construction work became the basis for prevailing wage laws.

In his piece the other day, Rick also explained something that may be lost in all the recent back-and-forth about subpoenas and documents and whether the folks at Workforce West Virginia for some reason didn’t provide every single record they had in response to a legislative inquiry about how they came up with new prevailing wage figures:

The latest development is pretty unprecedented. Republican legislative leaders have subpoenaed Workforce WV to search for emails revealing the influence of “outside interest.” I’m pretty sure that these “outside interests,” if there are any, are actually West Virginians who may have communicated with a public agency. Sometimes you’ll have that in a democracy.

By contrast, model legislation to gut the prevailing wage came straight from the playbook of the ultimate outsider group, i.e. ALEC (American Legislative Exchange Council), a corporate-funded national effort to influence state policies in the interest of the very wealthy.

Now one thing that I think is clear, though not admitted, is that if there was some hint that a conservative group’s emails to a state agency or legislative office were being withheld from some investigation, the other side would think it was a pretty important issue. I don’t say that to suggest there’s any proof that anyone at Workforce West Virginia was trying to hide anything — and certainly not to suggest that the folks at the Affiliated Construction Trades Foundation were doing anything but exercising their rights when they emailed the state about prevailing wage issues.

My point is that both sides of the political debate here seem to care less about transparency as an actual important value in our system than about allegations about the lack of transparency as an effective tool to score points on a separate political issue.

How do we know this is true?

Well, consider what happened a little more than a year ago, when Gov. Earl Ray Tomblin and his staff thought that it was just fine to have a “stakeholder meeting” about leaking chemical storage tank legislation that included only representatives of the companies that own the chemical storage tanks. I don’t recall a lot of complaints from Republicans or Democrats in the Legislature about that, though it’s certainly true that the incident played a role in some Democratic legislative leaders insisting on long public discussions in committee meetings, and passage of a very strong bill.  Of course, we all know what happened after that, when the heat died down and there was less public focus on the issue.

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