Sustained Outrage

Secret meetings, July 30, 2010

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Today’s issue of The State Register contained two meetings that violated the public notice requirements of West Virginia’s open meetings act.

One meeting was of the Consolidated Public Retirement Board and the other was the WVDEP’s meeting on the water pollution plan for the Cheat River watershed.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Another installment of some work that drew our attention this week.

In the wake of the publication of a staggering amount of classified information related to the war in Afghanistan by Wikileaks, talked to Neil Sheehan, the former New York Times reporter (and Pulitzer Prize winner for his book about Vietnam, A Bright Shining Lie) who was on the receiving end of the Pentagon Papers leak. Propublica also provided a reading list to help put the leak into context.

The Obama administration is looking to make it easier for the FBI to gain certain information about e-mails and Internet activity without a court order, the Washington Post reported. The agency currently uses what are called national security letters, which require the recipient to turn over certain information and to keep the request a secret, the article notes. If the words “electronic communication transactional records” are added to the list of things the FBI can ask for, then companies may be forced to turn over information regarding who an e-mail was sent to, a user’s browser history and the time and date it was sent, but not, government lawyers say, the contents of the e-mail.

One outcome of the recently passed financial reform legislation was exempting the Securities and Exchange Commission from almost all Freedom of Information Act requests, according to this story by Fox Business. Under the new law, the SEC would not have to disclose records or information resulting from “surveillance, risk assessments, or other regulatory and oversight activities.” “Given that the SEC is a regulatory body, the provision covers almost every action by the agency, lawyers say,” the article states. “Congress and federal agencies can request information, but the public cannot.”

EPA moves faster to get toxic pollution data out

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For years, one of the biggest problems with data from the U.S. Environmental Protection Agency’s Toxics Release Inventory was that it seemed hopelessly out of date.

Historically, figures publicly released lagged about two years behind. Companies reported annual releases the following July. EPA took months to compile it into various reports and make it available.

That all might be changing, according to this news release issued this morning by President Obama’s EPA Administrator, Lisa P. Jackson:

As part of the Obama Administration’s continuing commitment to open government, the U.S. Environmental Protection Agency (EPA) has published the latest data on industrial releases and transfers of toxic chemicals in the United States between Jan. 1 and Dec. 31, 2009. EPA is making the Toxics Release Inventory (TRI) data available within weeks of the reporting deadline through its Web site and in the popular tools, TRI Explorer and Envirofacts. The database contains environmental release and transfer data on nearly 650 chemicals and chemical categories reported to EPA by more than 21,000 industrial and other facilities.

The new data is available here, and can be downloaded as raw data that you can analyze with a spreadsheet or database manager on your PC.  But most folks might prefer to look up their local chemical plant’s emissions via EPA’s TRI Explorer system here.

Jackson said:

It is vital that every community has access to information that impacts their health and environment.  The data we’re releasing provides critical insights about pollution and polluters in the places where people live, work, play and learn. Making that knowledge available is the first step in empowering communities to protect the environment in their areas.

EPA adds:

The preliminary dataset includes more than 80 percent of the data expected to be reported for 2009. EPA will continue to process paper submissions, late submissions, and to resolve issues with the electronic submissions. The agency will update the dataset in August and again in September so citizens will have complete access to the information. EPA encourages the public to review and analyze the data while EPA conducts its own analysis, which will be published later this year.

Creation of the TRI program has a close tie to West Virginia, as EPA explains here:

In 1984, a deadly cloud of methyl isocyanate killed thousands of people in Bhopal, India. Shortly thereafter, there was a serious chemical release at a sister plant in West Virginia. These incidents underscored demands by industrial workers and communities in several states for information on hazardous materials. Public interest and environmental organizations around the country accelerated demands for information on toxic chemicals being released “beyond the fence line” — outside of the facility. Against this background, the Emergency Planning and Community Right-to-Know Act (EPCRA) was enacted in 1986.

Tracking felonies

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Sometimes, covering crime and courts, the media gets so focused on a particular case that we forget to take a step back and look at the bigger picture. Thankfully, reports like this study from the Bureau of Justice Statistics provide a compelling snapshot of how felonies work their way through the justice system.

The report, Felony Defendants in Large Urban Counties, 2006, looked at the 58,100 felony cases initiated in May 2006. Here are some of the key findings:

— Since 1990, violent crimes have inched downward, from 27 percent of felonies to 23 percent in 2006. The percentage charged with drug crimes have gone up, from 34 percent in 1990 (with a quick dip to 30 percent in 1992) to 37 percent in 2006. Property crimes have also gone down, from a high of 35 percent in 1994 to 29 percent in 2006.

— Defendants seem to be getting older. In 1990, only 10 percent of defendants were 40 or older, and that has risen steadily to 25 percent in 2006. The percentage of defendants under 25 has decreased, from 40 percent in 1990 to 33 percent in 2006.

— More defendants have criminal histories and convictions. In 1992, 55 percent of defendants had a previous felony arrest, compared with 64 percent in 2006. Those with prior felony convictions rose from 36 percent in 1990 to 43 percent in 2006.

— Almost one in three of the defendants charged, 31 percent, were already involved with the criminal justice system, either by being in custody, awaiting trial, or on probation or parole, when they were arrested on the new offense.

— Roughly three out of five defendants charged were released before the case was resolved. Of those, 33 percent engaged in some sort of pretrial misconduct. People facing drug offenses were more likely to have issues during their release (37 percent) than those with pending violent felony charges (26 percent).

The study also looked at typical outcomes for 100 defendants facing charges. Of those, 42 would remain in custody pending trial, while 58 would be released. Eight typically enter into a pretrial diversion with prosecutors, 23 have their cases dismissed, and 69 are prosecuted. Of those 69, four typically go to trial and 65 plead guilty. Of the trials, three result in convictions, and one ends in an acquittal. Of the 68 defendants who are convicted, 56 end in felony convictions, with 11 resulting in misdemeanor convictions. Two dozen will be sentenced to prison, two dozen sentenced to jail, 17 put on probation, and three have other sentences.

Let’s think about that: 95 percent of the convictions come from guilty pleas. Of those people who were convicted, 72 percent were convicted on the original charge for which they were arrested. Seven out of 10 of those convicted ended up incarcerated, either in prison or jail.

Remember, the study only looked at the 75 biggest counties in America, which naturally include some pretty big cities. At 191,000 people, West Virginia’s biggest county, Kanawha, doesn’t even come close. (El Paso County, Texas, is #75, and it has 750,000 residents.) But it still provides an interesting window into how felony cases are handled.

So, what kind of offenses were most likely to end in conviction? The answer may surprise you.

Continue reading…

Six months and counting for Diaz and Wynn

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As of today, it has been exactly six months since the Senate Judiciary Committee approved the nominations of two North Carolina judges for seats on the U.S. Court of Appeals for the 4th Circuit. But the entire Senate has yet to take a vote on James A. Wynn and Albert Diaz, who mustered one single nay vote between them as they passed out of committee, thanks in part to anonymous holds.

Earlier this month, the Greensboro News & Record noted that after Sen. Kay Hagan, D-N.C., took to the Senate floor to lobby on behalf of her state’s nominees, Senate Minority Leader Mitch McConnell, R-Ky., spelled out why he refused to sign off on putting Wynn and Diaz to a vote. He was upset with President Obama’s recess appointment of Dr. Donald Berwick to the post of Administrator of the Centers for Medicare and Medicaid Services.

Democrats did not schedule so much as a committee hearing for Donald Berwick. The mere possibility of allowing the American people the opportunity to hear what he intends to do with their health care was reason enough for this administration to sneak him through without public scrutiny.

Given the President has been so dismissive of the Senate’s right to provide advice and consent under the Constitution, I am not inclined at this point to consent to the request proposed by my friend from North Carolina. Therefore, Mr. President, I object.

Today, President Obama noted that he discussed confirming judicial nominees with McConnell during a meeting with Republican leaders.

[D]uring our meeting today, I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary.  Right now, we’ve got nominees who’ve been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve.  Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.

If we want our judicial system to work — if we want to deliver justice in our courts — then we need judges on our benches. And I hope that in the coming months, we’ll be able to work together to ensure a timelier process in the Senate.

Now, we don’t have many days left before Congress is out for the year. And everyone understands that we’re less than 100 days from an election. It’s during this time that the noise and the chatter about who’s up in the polls and which party is ahead threatens to drown out just about everything else.

But the folks we serve — who sent us here to serve, they sent us here for a reason. They sent us here to listen to their voices. They sent us here to represent their interests — not our own. They sent us here to lead. And I hope that in the coming months, we’ll do everything in our power to live up to that responsibility.

A few months ago, I wrote that four months seemed to be the standard amount of time that appelate judges had to wait to get a vote in the Senate. Well, Diaz and Wynn have blown past that mark, thanks in part to the time and energy devoted to Elena Kagan’s nomination to the U.S. Supreme Court. But they’re not even the worst off: Jane Branstetter Stranch, a Tennessee judge up for a seat on the 6th Circuit, has been left in judicial limbo since Nov. 19.

It’s been a busy first few weeks for Rafael Moure-Eraso, the new chairman of the U.S. Chemical Safety Board, as a story in the latest issue of Chemical and Engineering News (subscription required) explains:

Just four days after taking the helm of the Chemical Safety & Hazard Investigation Board (CSB), new chairman Rafael Moure-Eraso found himself in Portland, Conn., running a nighttime community meeting. There, he presented the final report on CSB’s investigation of an explosion that took place in February at the construction site of the Kleen Energy power plant where six workers died.

It was Moure-Eraso’s first CSB public meeting, as well as fellow new board member Mark A. Griffon’s. Neither of them even had time to unpack his Washington, D.C., office before leaving for Connecticut. With their arrival on the board, CSB will have its full complement of five members, which hasn’t happened in three years.

The two hit the ground running, and the pace is unlikely to slow for them, the other board members, or CSB’s 40-person staff as they face a record number of active investigations. The most recent addition to the board’s docket came in late June, when it accepted a congressional request to investigate the BP/Deepwater Horizon oil rig explosion in the Gulf of Mexico. This study promises to be one of CSB’s largest: Moure-Eraso estimates that it will take two years to complete and will cost $2.5 million.

Still, Moura-Eraso made time to visit the Kanawha Valley this week, meeting with officials from Bayer CropScience, citizens from People Concerned About MIC, and with Kanawha County Commission President Kent Carper. It was Carper, of course, whose complaint that the CSB was stalling its final report on the August 2008 explosion and fire at Bayer’s Institute plant prompted Moura-Eraso’s visit.

Moura-Eraso stopped by the Gazette newsroom this morning, and told us:

We wanted to show the flag and to say that we are on the job.

Again this morning Moura-Eraso promised the board would have its final report on that 2008 explosion and fire — which killed two plant workers — ready for release at a public meeting in the Kanawha Valley this fall, probably in September, according to Carper.

Continue reading…

Secret meetings, July 23, 2010

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Today’s issue of The State Register contains two meeting that did not comply with the public notice requirements of the West Virginia open meetings law.

The offenders? The West Virginia Health Care Authority and the state Public Service Commission’s Tower Access Assistance Fund Review Committee.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Here’s another batch of stories that drew our notice this week.

Two years of investigating by the Washington Post produced Top Secret America, a multi-part (and multimedia) exploration of the rapidly expanding intelligence community following 9/11. “The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work,” the second article in the series noted.

Baltimore’s Police Department has been so focused on murders and gun violence that its treatment of rape cases has become a “crisis” according to Police Commissioner Frederick H. Bealefeld III, the Baltimore Sun reported. Specialized detectives will handle rape cases from now on, instead of patrolmen, who routinely dismiss claims at the scene, the paper found. “[S]ince 2004, Baltimore has led the country with more than 30 percent of rape reports marked ‘unfounded’ by detectives, meaning police believed the victim was lying,” the article stated.

Although the United States and Europe have taken steps to curtail exposure to asbestos, the industry has found new markets in developing countries, the Center for Public Integrity reported in Dangers in the Dust: Inside the Global Asbestos Trade. “Health officials warn that widespread asbestos exposures, much as they did in the West, will result in epidemics of mesothelioma, lung cancer, and asbestosis in the developing world,” the investigation’s overview noted. Some experts have projected as many as 10 million total asbest0s-related deaths worldwide by 2030.

Marcellus shale: Jobs for local workers?

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Well site during active drilling to the Marcelllus Shale formation in Upshur County, West Virginia, in 2008. Photo copyright West Virginia Surface Owners Rights Organization.

There’s a report out today that is projecting a huge economic benefit for the region from Marcellus Shale gas drilling projects.  Previous reports have raised some questions, though, and there is also an interesting story out in the latest issue of The Act Report, the newsletter of the Affiliated Construction Trades Foundation:

Union construction workers are protesting out-of-state contractors and imported workers on another pipeline project related to the large Marcellus Shale gas fine in West Virginia.

The Act Foundation also has some video:

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OSHA: DuPont not reporting Belle injuries

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The press release yesterday from the U.S. Department of Labor made the “other-than-serious” violations at DuPont Co.’s Belle, W.Va., chemical plant sound like no big deal … nothing to worry about:

The company was also cited for five other-than-serious violations due to improper recordkeeping.

But when you read these citations, it actually looks pretty interesting to me.

For example, here’s one:

The 2005 OSHA-300 log was not updated per 29 CFR 1904.33(b)(1) to include newly discovered recordable injury or illness in that a recordable back contusion injury (case #05-55) that occurred on 12/29/2005 and resulted in job transfer or restriction was not recorded per the instructions under 29 CFR 1904.7(b)(4) until 02/3/10 as determined on Feb. 5, 2010.

Or this one:

The 2009 OSHA-300 log was not updated per 29 CFR 1904.33(b)(1) to include a newly discovered recordable injury or illness in that a recordable hearing threshold shift (case #05-54) that was discovered on 3/31/09 was not recorded per the instructions under 29 CFR 1904.10(a) as determined on May 10, 2010.

What’s this all mean?

Well, federal regulations require companies to maintain and file with OSHA something called an OSHA-300 log, on which they are to report information about workplace illnesses and injuries. They are also required to update those logs to include newly discovered injuries and illnesses. The updating must be done within seven calendar days of “receiving information that a recordable injury or illness has occurred.”

In this instance, OSHA has alleged that DuPont failed to update its injury-illness logs to add information about more than two dozen incidents in 2006, 2007, 2008 and 2009.

The very interesting thing here is that these injuries went unrecorded on DuPont’s logs for two, three, even four years … but somehow they were discovered and added to the log in the weeks after the January phosgene leak that led to the death of longtime Belle plant worker Danny Fish.

So, for example, 16 workplace injuries that occurred in 2006 went unreported by DuPont until suddenly all of them were discovered and added to the company’s logs within two weeks of Fish’s death. At least that’s the way OSHA says it happened, according to the citations issued by the agency.

The result?

Five “other-than-serious” violations (OSHA grouped all of the unreported injuries for each year together, so there’s one violation each for 2005, 2006, 2007 and 2008 and 2009) and a total of $5,000 in fines.

Keep in mind that under federal law, anyone who knowingly makes a false statement on any OSHA required documents — such as injury logs — can be prosecuted criminally and sent to jail for up to six months.

And let’s not forget that OSHA didn’t inspect the DuPont Belle plant even once in the five years prior to the phosgene leak that killed Danny Fish, and here’s what agency officials offered as their reason:

They have not been inspected since 2005 because we have not received a formal complaint or referral, there have been no fatalities and their injury and illness rate is low enough so that they are not on our Site Specific Targeting list.