Sustained Outrage

Minn. AG sues 3M over PFC pollution

This just in from the fine folks at Minnesota Public Radio:

Minnesota Attorney General Lori Swanson has filed suit against Minnesota-based industrial giant 3M for contaminating groundwater with PFCs, formerly an ingredient in stain repellents, fire retardants and other chemical products.

In a press release this morning, the AG said that a six-month moratorium on legal action expires today. The company and the state had entered into a formal negotiation agreement in May and negotiated on a settlement for six months.

In her statement, Swanson said no settlement was reached during the talks, which expired today.

See previous Sustained Outrage coverage of PFC issues in Minnesota involving 3M here, here, and here.

EPA cuts pre-Christmas deal with DuPont

Just days before Christmas — with the press and the public occupied with holiday events and family obligations — the Obama administration’s U.S. Environmental Protection Agency announced a fascinating new legal settlement with chemical giant DuPont Co.

The EPA press release announced:

The U.S. Environmental Protection Agency (EPA) today announced that DuPont has agreed to pay a penalty of $3.3 million to resolve 57 Toxic Substances Control Act (TSCA) violations. DuPont failed to immediately notify EPA of research indicating substantial risk found during testing chemicals for possible use as surface protection, masonry protection, water repellants, sealants and paints. The Toxic Substances Control Act requires companies to inform EPA when they have research demonstrating that a chemical could pose a substantial risk to human health and the environment.

I’ve posted a copy of the settlement here. If you look closely, you’ll notice one interesting thing regarding the timing of this deal: DuPont officials and at least one EPA official signed off on it way back in September. A final EPA signature was added on Dec. 6. But, an EPA announcement was withheld until the middle of the busy holiday week. And perhaps I’ve missed it, but I haven’t been able to find much media coverage of the deal. If a quiet announcement was intended, then EPA and DuPont succeeded.

Keep in mind now that it was just five years ago that EPA announced what it said at the time was “the largest civil administrative penalty EPA has ever obtained under any federal environmental statute” — a $10.25 million fine to be paid by DuPont for covering up studies about the potential dangers of the toxic chemical C8. As part of that deal, DuPont also agreed to spend $6.25 million on “supplemental environmental projects,” including an investigation of  the potential of some DuPont products to break down into C8 and a “green chemistry program” at Wood County, W.Va., schools.

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Policing the Police: Motorcycles and riot batons

The Lincoln County Massacre wasn’t really a massacre.

No one was killed the night in April 1980 when members of two motorcycle clubs say they were beaten by State Police with riot batons as their children, wives and girlfriends watched. Still, that’s what some of the people connected to the incident call it.

The incident left an indelible mark on the bikers who were there. So much so, in fact, that West Virginia filmmaker Elaine McMillion is making a documentary about it.

Before talking to Elaine, I’d never heard of the White House Tavern or any of the events that happened there. When she told me the story more than a year ago, it got me thinking about how the same types of allegations and problems keep coming up again and again with the State Police. The idea of history repeating itself is not new, but learning about the bikers and what they say happened directly led to yesterday’s story on the State Police.

I helped Elaine get a couple of interviews with lawyers who were involved with the bikers’ case, and in return she gave me more information than I’ll ever be able to use in a newspaper story about the incident.

One more thing to note, Gazette columnist and reporter Rick Steelhammer wrote a great story on it back in 1980 titled, “Modern Day Western.” You can read it, along with other newspaper accounts on Elaine’s website here.

Below is a longer, but still very abbreviated, account of what allegedly happened that night:

April 20, 1980 – Members of the Brothers of the Wheel motorcycle club and other bikers camp out at the White House Tavern in Lincoln County. A local biker, who is not a member of the gang, wrecks his bike outside a nearby house.

The neighbor later testified that another biker who arrived on the scene, who was also not a member of the club, asked him if he knew another man had been killed that night. The biker was lying, no one had been killed. “He said, ‘If you want trouble, you’ll get trouble. There are 50 of us. You’ll never get through the night,'” the neighbor testified.

The neighbor called the police and at 2 a.m. about 20 state troopers clad in riot gear and wielding nightsticks arrive at the White House Tavern. Members of the Brothers of the Wheel said they were mercilessly beaten by the officers with riot batons as they lay in their sleeping bags and tents. They said their women and children were forced to stand in front of the bar and watch.

West Virginia State Trooper B.R. Lester later testified that he called for back-up after residents near the tavern complained they heard gunfire and felt threatened.

Fifteen bikers were arrested and charged with public intoxication and resisting arrest. The charges were dropped when the troopers couldn’t identify whom they arrested. A later Lincoln County indictment on unlawful assembly charges was also dropped.

Rickey Lester, president of the Bootleggers Motorcycle Club, which was also at the White House Tavern, said he held up his hands when he saw the police coming, according to a report published in the Gazette at the time.

“Then a guy hit me on the back of the head with a club and threw me to the ground,” he said. “When I was laying there, I heard screams and thuds. I was kicked and poked. I never said a word, but somebody said I was sassing someone and I got a good portion before I got in the car. … They threw my keys away. One guy stomped on my glasses, then wadded them.”

Members of Brothers of the Wheel sued 19 state police, claiming they were attacked without provocation. They sued for $1 million.

In 1982 a  federal jury awarded 10 members of Brothers of the Wheel and the Bootleggers a total of about $24,000 in property damages and medical and legal costs stemming from the incident at the White House Tavern. The jury did not award compensatory damages to the bikers.

Policing the police: More on the video and timeline

Twelve minutes is a long time to sit and watch a video of anything, let alone just a guy sitting at a table and talking. But that’s the video you’ll find at the top of my story about the West Virginia State Police today. The video is of an interview with Roger Wolfe, who says he was beaten at the hands of State Police.

I don’t think I’ve ever had an interview where I needed to ask fewer questions (most of which were edited out helpfully by Douglas Imbrogno, who produced the video.) Mr. Wolfe simply sat down and told his story.

The reason it’s so long is to give you, the reader, a chance to listen to Mr. Wolfe tell his own story in its entirety.

People call me all the time with stories of how one police officer or another hurt them or abused their authority. Not even half of those stories are believable, and only a small percentage of the ones that are ever have a chance of becoming something you’ll read about in the paper.

In Roger Wolfe’s case, from the beginning we had a Kanawha County Magistrate and his lawyer, Ben Bailey, who were willing to go on the record about the incident, not to mention his mug shot. It was an easy decision to print the first story back in 2007. I didn’t even talk to Mr. Wolfe until earlier this year.

But most of the time the decision to print one of these stories is not easy. When someone calls me with some horrible tale of police brutality, the first thing I do is try to decide whether that person and their version of events is believable or not.

Even if I do think they might be telling the truth, that doesn’t mean they are and it doesn’t mean it’ll ever make the paper – but you have to start somewhere.

I also wanted to give you a little more information about the timeline by Gazette Graphic Designer Kyle Slagle that goes with the State Police story.

In Monday’s story police accountability expert Sam Walker said, “We have news stories about a particular officer when misconduct results in a very serious problem. We don’t really have a professional system to prevent these kinds of problems.”

That’s exactly what I found when I started researching this stuff.

The single best source for information has been newspapers, especially the Gazette’s archive. To assemble the timeline, I asked Steve Campbell, who takes care of the Gazette’s electronic library, to run a special search giving me listings of stories mentioning the State Police. The lengthy files aren’t perfect, but they give me just about all of the stories mentioning the State Police in chronological order going back to 1985.

I took those files and put them in DocumentCloud, a really neat tool that helps journalists examine and share documents. From there, I just had to pick out the most important dates and edit the information down to something someone other than me wouldn’t mind reading.

Below I’ve embedded the DocumentCloud files, which list in chronological order stories about the State Police going back two-and-a-half decades.You can make the document full-page by clicking the box in the bottom right-hand corner. The notes you’ll see to the right are my own and mostly just list what certain stories are about.

State Police stories from 1985-1989

State Police stories from the 1990s

State Police stories from the 2000s

This may well be the final installment for 2010, as your loyal contributors to Sustained Outrage take a quick break for the holidays. Merry Christmas and Happy New Year to all of our readers — please come back and visit us in 2011.

The U.S. Chamber of Commerce is weighing in on most business cases before the U.S. Supreme Court, with a remarkable success rate, the New York Times reported. During the last term, the Roberts Court sided with the party supported by the Chamber in 13 out of 16 cases, including the notorious Citizens United decision. Overall, the Roberts Court has been notably receptive to business concerns, issuing pro-business decisions 61 percent of the time, as opposed to 51 percent under Chief Justice Rehnquist, 47 percent under Chief Justice Burger and 29 percent under Chief Justice Warren.

The Pentagon’s health plan for troops and most veterans does not pay for cognitive rehabilitation therapy, even though many medical experts believe the lengthy, expensive treatment may produce the best results for patients with traumatic brain injuries, according to a joint investigation by NPR, Stars and Stripes and Head wounds resulting in diminished functioning are a common injury in the wars in Iraq and Afghanistan, where improvised explosive devices, or IEDs, wreak concussive havoc on soldiers at close range. In a follow-up piece, the investigation noted that some of the best treatment options are paid for by a philanthropist, not the Pentagon.

More than 1/4 of the 5,000 cellphones owned by Los Angeles County’s child welfare department were used by non-employees, resulting in $330,000 in charges last year, the Los Angeles Times reported. One employee racked up bills of more than $2,000 by making international calls that were personal, according to an audit of the department’s phone usage. The audit also found that agency had more than 500 broadband cards to access the Internet from portable computers, but 220 unused cards were unused and still incurred $90,000 in service fees, the article noted.

Thoughts on the (new) 4th Circuit

Thanks to Saturday’s confirmation of North Carolina Judge Albert Diaz, the U.S. Court of Appeals for the 4th Circuit now has 14 of its 15 seats filled, its highest complement of judges in years. I thought now would be a good time to check in with Carl Tobias, a law professor at the University of Richmond and an expert on the nomination process.

Obama’s four appointees have changed the makeup of the court, which now has nine judges who were nominated by Democratic presidents and five by Republican presidents. However, it’s too soon to conclude that the 4th Circuit, which has the reputation for being one of if not the most conservative Circuit Court in America, has shifted dramatically, he warned.

“I don’t think there’s much of a story in terms of a radical change in terms of the direction of the court,” Tobias told Sustained Outrage. “[The party of the nominating president] is a pretty crude instrument for measuring how people will vote on cases.”

All four — Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis — were already sitting judges, and it’s unlikely to expect any of them to depart wildly from their substantial judicial records, he said. Any shift is likely to be very incremental, but it’s too soon to draw any conclusions, he said.

“If you take their reputations, I think it’s clrea that the four of them are less conservative than the court was before. But how much so, I have no idea,” he said.

In two years, Obama has now placed more judges on the 4th Circuit than George W. Bush did during his eight years in office. Tobias said that the two president have varied in their approaches to filling the vacancies, with Bush holding steadfastly to his nominees who were suggested by the White House. In contrast, Obama has shown substantial deference to the home-state senators for each vacancy, making the Senate more willing to confirm his nominees, he said.

“Part of it was he was willing to listen to the senators, very much so,” he said. “It’s a lesson in how to successfully conduct judicial selection in the 4th Circuit.”

As it did under Bush and Bill Clinton, the number of judicial vacancies has soared over 100 during Obama’s first term. But unlike his immediate predecessors, Obama has not succeeded in quickly reducing that number from its peak, with the number of vacancies staying over 90 or so for the last 16 months, Tobias noted. It is this long period of many vacancies that has put such a strain on the federal court system, he said.

“There just hasn’t been a major dent in [the high number of vacancies], and that’s what’s troubling,” he said. The difference has been the loss of the tradition of confirming well-qualified, non-controversial district nominees.

“That tradition was honored forever, and I don’t think it is anymore. That has contributed substantially to what we’re seeing now,” he said.

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Senate confirms Diaz

The U.S. Circuit Court of Appeals for the 4th Circuit has a new judge. Today the Senate unanimously confirmed Albert Diaz, 50, of North Carolina, making him the first Latino in the court’s history.

Diaz’ nomination had been pending since Jan. 28, which had been the longest active wait of any of President Obama’s judicial nominees. Diaz’ confirmation means that the 15-seat panel, which sits in Richmond, now only has one vacancy. Four of the 14 judges (Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis) are Obama appointees.

A very busy Senate also took the time Saturday to hold a roll-call vote on Ellen Lipton Hollander, confirming her as a district judge for Maryland by a tally of 95-0. Sen. Joe Manchin, D-W.Va., was one of the five senators who didn’t participate in the vote.

Diaz becomes the 4th Circuit’s third judge from North Carolina, the biggest state in the court’s jurisdiction. Virginia has four judges on the panel, Maryland three, South Carolina two and West Virginia two (M. Blane Michael and Robert B. King, both Clinton appointees). The seat that is vacant was formerly occupied by Judge Karen J. Williams of South Carolina, who retired in July 2009.

Senate confirms four, but Diaz continues to wait

For the first time in over three months, the U.S. Senate confirmed four federal judges yesterday. The four confirmations — Catherine Eagles to serve on the District Court for the Middle District of North Carolina; Kimberly Mueller to serve on the District Court for the Eastern District of California; John Gibney to serve on the District Court for the Eastern District of Virginia; and James Bredar to serve on the District Court for the District of Maryland — represented the district court nominees who had passed unanimously out of committee with the longest wait for a vote.

“These confirmations are long overdue.  For months, these nominations have languished before the Senate, without explanation and for no reason. Today, we confirm them unanimously. These confirmations will help fill a few of the judicial vacancies around the country, which have reached historically high levels. I hope these are the first of many confirmations by the Senate before we adjourn,” said Judiciary Committee Chairman Patrick Leahy (D-Vt.).

Through his spokeswoman, Senate Majority Leader Harry Reid (D-Nev.) called the confirmations “just a start.”

Eagles and Dibney passed out of committee on May 6. They had a long wait. But Albert Diaz (pictured above), a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, passed unanimously out of committee on Jan. 28. He was nominated by President Obama over a year ago.

Including Diaz, there are still 34 nominees awaiting Senate votes, 19 of whom passed out of committee unanimously.

Earlier this week, the New York Times editorial board took the Senate Republicans to task for their relentless obstructionism.

The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.

Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)

Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

Senate Republicans seek to pin blame for the abysmal pace of filling judicial vacancies on President Obama’s slowness in making nominations. And, no question, Mr. Obama’s laggard performance in this sphere is a contributing factor. Currently, there are 50 circuit and district court vacancies for which Obama has made no nomination. But that hardly explains away the Republicans’ pattern of delay over the past two years on existing nominees, or the fact that Senate Republicans have consented to a vote on only a single judicial nomination since Congress returned from its August recess.

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There’s one meeting in this week’s issue of the State Register that violated the public notice requirements of West Virginia’s open meetings law.

The agency? The state Information Technology Council.

And to catch everybody up, last week’s issue of the State Register included three meetings that violated the public notice requirements. One of them was a meeting of the state Environmental Quality Board that I covered for the Gazette, and the other two agencies were the McDowell County Day Report Center’s Community Criminal Justice Board and the state Pharmacy Board.

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.

On a snowy Thursday, here’s the latest edition of stories that we’re following with interest:

Could some American-made drywall face the same contamination issues that has plagued drywall manufactured in China? Almost 100 homeowners in four states have joined lawsuits against U.S. drywall makers over the last year, alleging that sulfur emissions are causing health problems and corroding wiring and appliances, making their homes unlivable, according to a joint investigation by the Sarasota Herald-Tribune and One theory is that “the gas release may somehow be connected to synthetic gypsum, a form of coal ash produced by the scrubbing process that removes sulfur dioxide from the emissions of coal-fired power plants,” according to the joint report.

An official with the Department of Energy has recommended that the U.S. reopen rare earth mines to ensure a steady supply, Bloomberg News reported. A new study suggests that stores of dysprosium, which is used to make wind turbines, solar panels and clean-energy products, may not meet demand. In addition to re-activating the Mountain Pass mine in California, the U.S. should start recycling materials that have rare-earth elements, the DoE official said.

A federal probe into alleged crooked hiring practices in the Massachusetts Probation Department has expanded to the state Legislature, the Boston Globe reported. Grand jury subpoenas were issued to the state Senate and House of Representatives. Probation Commissioner John J. O’Brien has been suspended but continues to collect his $130,000 annual salary. A special investigator appointed by the state’s Supreme Judicial Court wrote in his report that “[t]he evidence demonstrates that an understanding existed among certain legislators and O’Brien that generous appropriations for the Probation Department were linked to O’Brien’s willingness to perpetuate and systematize fraudulent hiring and promotion on a pervasive scale.’’