Sustained Outrage

Third worker dies from New Cumberland explosion

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

As The Associated Press reports:

A third man has died in the explosion at a small West Virginia chemical plant.

The Allegheny County Medical Examiner’s Office in Pittsburgh says 27-year-old Steven Swain of Weirton died Monday evening at UPMC-Mercy Hospital.

Swain had been in critical condition since Thursday’s blast at AL Solutions in New Cumberland. His stepfather, Rick Holbrook, told WTOV of Steubenville, Ohio, that the family removed Swain from the ventilator.

Holbrook says Swain had suffered severe burns over 97 percent of his body.

He says three patients will receive donated organs from Swain’s body.

Brothers Jeffrey and James Fish were also killed in the blast.

Meanwhile, I got a brief telephone message from Robert Hall, who is leading the U.S. Chemical Safety Board’s investigation of this terrible explosion, but Hall didn’t have a lot to say yet:

We have been interviewing employees and have done a detailed examination of the accident scene.

Right now, everything is very preliminary and we don’t want any information in the press that might contaminate what witnesses tell us.

Former Bush lawyer: Real Republicans Don’t Filibuster

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As and others reported last week, there appears to be some movement — or at least discussion of possible movement — on many of the 38 judicial nominees currently awaiting confirmation votes in the full Senate. In the rumored deal between Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), Democrats would have to agree to send four nominees back to the president in exchange for Republicans agreeing to confirm up to 19 non-controversial candidates.

But is a last-minute deal, with time running out before the new Congress takes office in January and forces President Obama to re-submit all of his pending nominees, really the only way to fill any vacancies? (The Senate hasn’t confirmed a federal judge since September.)

No, according to a rather unlikely source: Richard Painter, former associate counsel to President George W. Bush. In a Dec. 9 Huffington Post piece, Real Republicans Don’t Filibuster, Painter revisited public statements made by GOP senators during the previous administration that decried the use of filibusters to block President Bush’s nominees. They were right then, and they’re still right, he maintained.

For the reasons stated by these leading Republican senators, filibustering judicial nominees is wrong. Moreover, the lame duck session does not provide Republicans any excuse for suspending this principle. Since 1933, when the 20th Amendment set January 3 as the date for congressional turnover, there have been 70 lame duck judicial confirmations; 64 were of Republican nominees, and 15 occurred after Republicans lost seats in the Senate. Moreover, the recent elections focused on jobs and the economy, not judges. Republicans have no midterm mandate to block qualified nominees.

Sticking to principle is not only the right thing to do; it is also good politics for Republicans. First, the public shares the view that the filibuster is wrong. It is one thing to vote no; it is another to prevent other people from voting because they might vote yes.

Second, if Senators support a filibuster after denouncing them, it would be hard for anyone to trust what they say again. Their past opposition to filibusters would be seen as mere partisan politics. Voters respect politicians with principle; they are tired of hypocrisy.

Third, what goes around comes around. Someday Republicans will again control the White House and Senate, as they did for much of President Bush’s two terms. When a Republican President nominates conservatives to the federal bench, Democrats will look for an excuse to prevent a Senate vote. Republican Senators who filibuster now give Democrats an excuse to filibuster later.

The result could be a devastating set-back for Republicans, whose successes in putting conservatives on the bench have historically outpaced Democratic successes in getting liberals confirmed. Consider, for example, the well-known conservatives among successful Bush nominees: John Roberts, Samuel Alito, Priscilla Owen, Janice Rogers Brown, Brett Kavanaugh, Mike McConnell, and Jeff Sutton, to name a few. The failed nomination of Miguel Estrada was the exception rather than the rule. Democrats justified their obstruction then by pointing to Republican efforts to block President Clinton’s nominees, including Richard Paez, whose four-year confirmation battle was the longest ever for a circuit court nominee.

Republicans’ hard-fought battle during the Bush Administration to move away from this “tit-for-tat” toward an effective confirmation process would be lost if Democrats are now given an excuse to block future Republican nominees. Republican Senators could never again with a straight face say that filibusters are wrong. In confirmation politics, two wrongs don’t make a right; they just beget more wrongs.

Fourth, there is no compelling reason to vote against President Obama’s nominees, much less to prevent a vote on them. The nominee we hear about most often — Goodwin Liu — is mischaracterized as a radical liberal (perhaps because he teaches law at Berkeley or because he has written about how the law affects minority groups). Liu’s record, however, puts him well within the legal mainstream, and he has emphasized objectives shared by conservatives such as fixing substandard public schools and allowing parents more school choice. Moreover, his qualifications earned him the highest rating from the American Bar Association as well as endorsements from conservatives such as Ken Starr, Clint Bolick, and John Yoo. He would fill a “judicial emergency” seat that has been vacant more than 675 days.

If Liu’s nomination is the best President Obama can do to infuriate the right, the President is not trying very hard. Diatribes against Liu fill air time on talk radio but have nothing to do with the kind of judge he would likely be. Blocking him or any of the 22 other Obama nominees now awaiting a vote is not worth abandoning the principle that Republican Senators have been acclaiming for years: Senators should vote their conscience on judicial nominees, but they should vote.

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

The latest word from New Cumberland, W.Va., via The Associated Press is that two workers — not three as initially reported — were killed in yesterday’s terrible explosion at the  AL Solutions Inc. chemical plant.

According to the AP:

Police Chief Lester Skinner said he grew up with the brothers who were killed and never made it out of the plant: Jeffery Scott Fish, 39, and James E. Fish, 38. They lived in separate homes about 200 yards apart from each other and about five blocks from the plant.

Family and friends were gathering at the younger Fish’s home a few hours after the blast. A woman outside the home declined comment for the family.

At Rebecca’s Lounge, a nearby bar, Pat Jones said he knew the older brother.

“Scott was a very, very generous boy,” he said. “He’d do anything for anybody, including giving you the shirt off his own back.”

A third employee, 27-year-old Steven Swain, was badly burned. He remained in critical condition Friday at UPMC-Mercy hospital in Pittsburgh, spokeswoman Karissa Millick said.

The other injured victim was Dave Williams, an outside contractor who was at the plant when the explosion happened. He was being treated for burns to his hands and face. Investigators said they did not know Williams’ age, what kind of work he was performing or the name of his employer.

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This just in:

NEW CUMBERLAND, W.Va. (AP) — An explosion rocked a small chemical plant in West Virginia’s northern panhandle, killing three workers and injuring one other person, police and company officials said Thursday.

Firefighters were still putting out hot spots from a fire at the plant Thursday afternoon. New Cumberland Police Chief Lester Skinner said the emergency call about the blast at the AL Solutions Inc. plant came in around 1:20 p.m.

Lt. Jeremy Krzys (KRIS’), the first officer on scene, said he had been sitting at a traffic light when he heard the blast and immediately rushed to the plant.

“I just heard a loud bang and all of a sudden you saw black smoke pouring out,” Krzys said.

Krzys said he saw two injured men run out of the building when he arrived. He said one man was badly burned, while the other was still on fire. Krzys says co-workers used blankets to extinguish the man who was on fire.

Company officials said in a statement that the worker who was badly burned died later after being transported from the scene for medical treatment. The other injured person, who was an employee for an outside contractor, suffered minor burns.

None of the victims has been identified, though Skinner said he knew both of the men who died and had grown up with them.

The plant site is home to a large, corrugated metal building complex and a smaller stucco building that sits across the parking lot, which is where the men were working. Skinner said they were working with titanium powder, which is used as an alloy additive in aluminum.

The powder is packed into bricks that look similar to hockey pucks, Skinner said. It’s highly flammable, which is why firefighters had to finish extinguishing hotspots before investigators could get to the dead men inside.

“It’s not like putting out a brush fire or wood,” Skinner said.

Labor Department spokeswoman Joanna Hawkins said federal Occupational Safety and Health Administration officials were on their way to investigate.

AL Solutions was formerly called Jamegy Inc. The company website says it also has a plant in Missouri.

At the Mid-Ridge Cafe, which sits along the main highway that leads into town and overlooks the plant, waitress Sandy Lemasters said she didn’t hear the blast that was just a mile away. But it didn’t take long for people to start coming in to talk about what happened.

People who came in said the men who died were two brothers from the town, Lemasters said.

“They came in and said there were two dead,” she said. “It’s a shame. That’s the third time it’s happened there.”

In August 1995, a worker was killed and another injured when an explosion and fire ripped through the plant when it was operated by Jamegy.

In 2006, another worker died following an explosion and fire in a production building.

Earlier this week, a New York Times editorial headlined “The Crime of Punishment” assailed the widespread overcrowding of American prisons. With the U.S. Supreme Court to take up an earlier ruling that overcrowding in California’s prisons is the “primary cause” of what the editorial called “gruesome inadequacies in medical and mental health care” for prisoners, the Times urged the justices to uphold the lower court’s decision.

In 2005, when a federal court took a snapshot of California’s prisons, one inmate was dying each week because the state failed to provide adequate health care. Adequate does not mean state-of-the-art, or even tolerable. It means care meeting “the minimal civilized measure of life’s necessities,” in the Supreme Court’s words, so inmates do not die from rampant staph infections or commit suicide at nearly twice the national average.

The editorial continues:

Four years ago, when the number of inmates in California reached more than 160,000, Gov. Arnold Schwarzenegger declared a “state of emergency.” The state’s prisons, he said, are places “of extreme peril.”

Last year, under a federal law focusing on prison conditions, the lower court found that overcrowding was the “primary cause” of gruesome inadequacies in medical and mental health care. The court concluded that the only relief under the law “capable of remedying these constitutional deficiencies” is a “prison release order.”

Today, there are almost twice as many inmates in California’s 33 prisons as they were designed for. The court ordered the state to reduce that population by around 30 percent. While still leaving it overcrowded, that would free up space, staff and other vital resources for long overdue medical and mental health clinics.

Finally, the Times’s editorial board concluded:

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology. California’s prisons embody this overwhelming failure.

As we’ve previously noted, West Virginia’s prisons and jails are overcrowded, and the national prison population continues to grow even though crime is down.

And just this week we had a reminder of what health conditions inside West Virginia’s jails can be like, as the Wheeling Intelligencer reported that eight inmates at the Northern Regional Jail are being treated for scabies.

Photo via AP by Tom Hindman, Charleston Daily Mail

As we reported in today’s Gazette, the U.S. Chemical Safety Board is expected to recommend next month that Kanawha County adopt one of the toughest chemical plant safety programs in the country.

The proposal will likely be part of the board’s final report on the August 2008 explosion and fire that killed two workers at the Bayer CropScience plant in Institute.

Readers who are interested in more information about what sorts of chemical plant safety programs the CSB is recommending that Kanawha County adopt could check out the programs in New Jersey, Massachusetts and especially in Contra Costa County, Calif.

The Senate Judiciary Committee approved four more nominees for federal judgeships yesterday at its executive business meeting, bringing the total of candidates awaiting up-and-down votes from the full Senate to 38. (Robert N. Chatigny, up for a spot on the U.S. Court of Appeals for the 2nd Circuit, was held over.)

The Senate hasn’t confirmed a federal judge since Sept. 13, and time is running out on the current session. On Wednesday, Sen. Kay Hagan (D-N.C.) published an op-ed in the Herald Sun, calling on the Senate to confirm North Carolina Judge Albert Diaz to a seat on the 4th Circuit before his nomination expires when this session of Congress adjourns.

North Carolina is the largest and fastest-growing state in the 4th Circuit, but we have been historically underrepresented on this critical court. Since its establishment in 1891, only eight North Carolina judges have served on the court — the same number as the smallest state in the circuit, West Virginia.

One of my priorities has been to increase North Carolina’s representation on the 4th Circuit. After many months of working with the White House, it was a terrific victory for North Carolina when the president nominated Diaz and Judge Jim Wynn to the court. Wynn was confirmed in August, but Diaz still hasn’t had an up-or-down vote.

The 4th Circuit is the last stop for almost all federal cases in the region, and we need to have the court at full strength. Because of its longstanding vacancies, the Administrative Office of the U.S. Courts considers the 4th Circuit a “judicial emergency.” This negatively impacts appellate justice for North Carolinians. This bench provides the fewest oral arguments and published opinions in the country.

The delay for judicial nominees is unprecedented. By Dec. 8, 2002, during the Bush Administration, the Senate had confirmed 100 judicial nominees. But as of today, the Senate has confirmed just 41 judicial nominees. During the first two years of the previous administration, it took an average of 26 days for a circuit court nominee to be confirmed after being approved by the Judiciary Committee. Since President Obama took office, it has taken an average of 133 days. And Diaz has been waiting 314 days since the committee approved him 19-0. This is totally unacceptable.

Despite bipartisan support for his nomination, Republican leaders have objected to scheduling an up-or-down vote on his nomination. These objections have nothing to do with Diaz’s qualifications and everything to do with partisan gamesmanship.

Diaz’s and Eagles’ nominations will expire if the Senate does not vote on them before the 111th Congress adjourns. I will continue fighting to see that they are confirmed. North Carolina deserves better than the gridlock that has thus far prevented an up-or-down vote on these two extremely well-qualified nominees.

There are currently 109 judicial vacancies, 51 designated as judicial emergencies by the Administrative Office of U.S. Courts.

Here’s another bunch of stories we’re reading this week:

In the last ten years, Burlington Northern Santa Fe Corp., the nation’s second largest railroad, or its lawyers have been disciplined 13 times for breaking legal rules, the Minneapolis Star Tribune reported as part of a four-part special report. In that time, at least 43 BNSF workers have been killed, and more than 7,800 have suffered work-related injuries, according to part four of the series. This has resulted in often-acrimonious legal battles, with judges citing the railroad or its lawyers repeatedly for a variety of behavior, including destroying evidence.

Bank robbers are using cutting-edge Hollywood masks to conceal their identities, the Los Angeles Times reported. Last year in Ohio, a white man disguised himself so well as a black man that authorities actually arrested an African American man for the bank robberies. Police in southern California are now beginning to think that the so-called Geezer Robber is not an older man, but a younger man wearing a SPFXMasks disguise.

A top lobbyist in Albany has agreed to a $500,000 fine and a five-year ban, according to the Albany Times-Union. Patricia Lynch arranged campaign donations, a consulting contract and thousands of dollars in gifts in an attempt to curry favor with then-comptroller Alan G. Hevesi and to convince the state’s $124 billion pension fund to invest with her lobbying clients. The settlement was reached with the New York Attorney General’s office.

Chemical Safety Board looking at DuPont leak

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CSB investigator Johnnie Banks briefs the Kanawha Valley media last January.

Investigators from the U.S. Chemical Safety Board have been in the Kanawha Valley the last few days, looking into last week’s leak that sent two workers at the DuPont Co. plant in Belle, W.Va., to the hospital.

Recall that the CSB was already investigating the series of incidents last January at the Belle plant, including the phosgene release that claimed the life of longtime plant employee Danny Fish.

The last time CSB investigator Johnnie Banks launched a probe at the DuPont facility, he was able to very quickly determine that a key phosgene transfer hose involved in that fatal leak was badly frayed.  It turned out the hose was long overdue to be replaced, which prompted citations from both the U.S. Environmental Protection Agency and the federal Occupational Safety and Health Administration.

Yesterday, Banks had no quick answers about last week’s leak of monomethylamine. He told me that investigators found no apparent defects or damage to the equipment involved, and no “smoking gun” for what might have caused the incident.

CSB investigators will now go back to Washington, D.C., continue their work and then prepare a report for their board. Board members will then decide how to proceed. In the meantime, the board hopes to release its final report on last January’s DuPont accidents sometime during the first quarter of 2011, Banks said.

FBI: Hate crimes down in West Virginia

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Late last month, the FBI released hate crime statistics for 2009. Happily, hate crimes in West Virginia are way down from last year, from 43 total in 2008 to 24 in 2009.

Broken down by type of offense, 18 were motivated by race, three by sexual orientation, one by religion, one by ethnicity and one by disability.

The FBI breaks down its numbers by jurisdiction, so here’s a list of places where hate crimes occurred: Buckhannon, Clarksburg, Fairmont, Huntington, Martinsburg, Morgantown, Moundsville, South Charleston, Weirton (which had four total) and Wheeling (at the city level) and Berkeley, Jefferson, Kanawha, Monongalia, Summers and Upshur Counties.

Interestingly, Marshall University was the site of two hate crimes in 2009, both racial incidents.

Here are the FBI’s bullet points, which indicate that hate crimes were down nationwide in 2009:

  • Of the 6,598 single-bias incidents, 48.5 percent were motivated by a racial bias, 19.7 percent were motivated by a religious bias, 18.5 percent were motivated by a sexual-orientation bias, and 11.8 percent were motivated by an ethnicity/national origin bias. Bias against a disability accounted for 1.5 percent of single-bias incidents.
  • There were 4,793 hate crime offenses classified as crimes against persons in 2009. Intimidation accounted for 45.0 percent of crimes against persons, simple assaults for 35.3 percent, and aggravated assaults for 19.1 percent. Other offenses, including nine forcible rapes and eight murders, accounted for the remainder.
  • There were 2,970 hate crime offenses classified as crimes against property; most of these (83.0 percent) were acts of destruction/damage/vandalism. The remaining 17.0 percent of crimes against property consisted of robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses.
  • An analysis of data for single-bias hate crime incident victims revealed that 48.8 percent were targeted because of the offender’s bias against a race, 18.9 percent because of a bias against a religious belief, 17.8 percent because of a sexual orientation bias, 13.3 percent because of an ethnicity/national origin bias, and 1.2 percent because of a disability bias.
  • Of the 6,225 known offenders, 62.4 percent were white, 18.5 percent were black, 7.3 percent were groups made up of individuals of various races (multiple races, group), 1.0 percent were American Indian/Alaskan Native, and 0.7 percent were Asian/Pacific Islander. The race was unknown for the remaining known offenders.
  • The largest percentage (31.3 percent) of hate crime incidents occurred in or near homes. In addition, 17.2 percent took place on highways, roads, alleys, or streets; 11.4 percent happened at schools or colleges; 6.1 percent in parking lots or garages; and 4.3 percent in churches, synagogues, or temples. The remaining 29.7 percent of hate crime incidents took place at other specified locations, multiple locations, or other/unknown locations.