Sustained Outrage

Time for our weekly look at stories of interest:

As part of a series on Internet bullying called ‘Poisoned Web,’ the New York Times published this story about how three teens in Washington State were charged with dissemination of child pornography after they forwarded a naked cell-phone picture of a 13-year-old girl. Prosecutors struggle with where to draw the line with so-called “sexting,” which is legal between adults but can be illegal when minors are involved in posing, photographing, distributing or receiving. The article cites a poll conducted by MTV and the Associated Press which found that 24 percent of teens between the ages of 14 and 17 had been involved in “some type of naked sexting,” either online or via phone.

The Food and Drug Administration is looking into whether there is a link between food dyes and hyperactivity in children, NPR.org reported. Recent studies have caused experts to call upon the FDA to ban eight different dyes, which serve no purpose in food and have no nutritional value, they argue. Prior to a meeting on Wednesday, the FDA released its analysis, which found no causal relationship between food dyes and hyperactivity, although one expert said that “there is this body of literature that does suggest that food colorings are not as benign as people have been led to believe.”

Three Milwaukee Police Officers who were disciplined by the department — two of whom were fired — after allegations of sexual misconduct on duty surfaced are still on the job, the Milwaukee Journal Sentinel reported. The two fired officers were reinstated after the civilian Fire and Police Commission reversed the punishments handed down by the chief of police. Without criminal convictions, the story noted, it can be difficult to remove the officers from the department, even when the purported victims’ stories are deemed to be credible. Abusive officers are particularly dangerous to victims, the co-executive director of a local family center told the paper, partially because they cast a shadow of doubt on the good work by the rest of force. “Police officers have a lot of power in their hands and when they abuse that power, we have to take a very firm stand on that not being acceptable,” she said.

C8 update: About that new WVU study …

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The Parkersburg-area media had an interesting take on last week’s new WVU study about the potential impacts of the toxic chemical C8 on the early onset of menopause among women.

The first paragraph of the story summarized the WVU study, but the article didn’t get to any further details about what the scientists studied or reported until much later in the piece. Instead, the next few paragraphs were simply quotes from a prepared statement issued by DuPont:

“This paper does not actually report an association between early menopause and exposure to PFOA. The authors do not present any data in this study that would suggest any associations at all between PFOA and endocrine disrupting effects. The study does not demonstrate a statistical correlation between PFOA exposure and the onset of menopause in women between 18 and 42 years of age. If early onset of menopause were to occur, it would be observed in this age group. The authors neither present data nor make such a claim in the paper,” said Robin Ollis Stemple, external affairs, Washington Works spokesperson for DuPont.

“The authors state that additional caveats include the fact that information about menopause comes from survey data and was not independently confirmed, nor was it possible to establish the exact age of menopause. Further, the authors reported no association between PFOA exposure and levels of estradiol in any age group,” said Janet E. Smith, Global public affairs leader, DuPont Chemicals and Fluoroproducts, DuPont spokesperson.

Huh?

The Gazette was the first media outlet to report the findings of this study, published in the Journal of Clinical Endocrinology & MetabolismIn our story, we explained the findings this way:

Women exposed to higher levels of the toxic chemical C8 were more likely to have experienced menopause, according to a new West Virginia University study that offers some of the strongest evidence to date that such chemicals disrupt the human body’s natural hormone system.

The study found an association between chemicals called perfluorocarbons, or PFCs, in women’s blood and the onset of menopause. It also found that higher levels of the chemicals appeared related to lower levels of estrogen.

A story by ABC News explained it in a similar way:

Chemicals found in everyday products such as non-stick pans, clothing, furniture, carpets and paints have been associated with the early onset of menopause, according to a new study from the West Virginia University School of Medicine.

But that Parkersburg paper’s report got me wondering if maybe I misunderstood something here, especially the part where a DuPont publicist said:

This paper does not actually report an association between early menopause and exposure to PFOA.

So I circled back to Sarah Knox, the WVU researcher who was the study’s lead author, and asked about the DuPont comments … Dr. Knox told me:

The study found that women with higher levels of two PFCs, perfluourooctanoic acid (PFOA) and perflourooctane sulfonate (PFOS) were more likely to have experienced an early menopause.

The conclusion was that the two PFC are associated with this outcome. In addition, one of the PFCs (PFOS) was also associated with lower estradiol (an estrogen level).

Of course, no one study proves something this complicated, and as Dr. Knox pointed out:

These results add to and are consistent with other animal and human studies suggesting endocrine disruption. However we were clear in the published paper and in intereviews that this single study was short of proof that PFOA and PFOS are the cause of the earlier menopause.

M. Blane Michael, 1943-2011

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Word came on Friday that Judge M. Blane Michael, one of two judges from West Virginia who sits on the U.S. Court of Appeals for the 4th Circuit, had passed away. Judge Michael served on the 4th Circuit for more than 17 years.

Judge Michael was only the second occupant of seat nine on the court, which was created in 1978 and has always been held by a judge from West Virginia, with its duty station located in Charleston.

Others, including his old friend, Sen. Jay Rockefeller (D-W.Va.), have recalled his prodigious gifts as a lawyer and jurist, as well as his affability and warmth.

“Unvarnished in his honesty, uncanny in his humor and unequaled in his humility, Blane was a formidable presence on the federal bench, with a moral and intellectual compass set hard for justice,” Rockefeller said in a statement. “He was a brilliant judge who never took for granted the power and the responsibility of deciding the cases that impacted people’s lives or righted serious wrongs.”

I didn’t know Judge Michael well, but on those rare occasions when our paths crossed, I found him charming and unassuming, with a lively intellect that stretched far beyond the law.

But even as we recall what a personable and admirable man Judge Michael was, we should not overlook his stature as a judge, which is hard to overstate. It’s worth remembering that in 2005, when asked by the Bush administration, West Virginia Sen. Robert C. Byrd recommended Judge Michael to fill the vacancy on the U.S. Supreme Court after Chief Justice William Rehnquist died.

Through his opinions, he was a powerful voice, not just for West Virginia, but for the entire nation, as he served with distinction on one of the most carefully watched and influential courts in the country.

Over the years, my colleague Ken Ward has noted Judge Michael’s impact several times over on Coal Tattoo. Below are two samples of Michael’s clear and forceful writing, which do not even begin to do justice to the judge’s legacy.

Dissenting from the 4th Circuit’s decision not to rehear a case involving a mountaintop removal permit:

I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether the U.S. Army Corps of Engineers erred in approving permits that allow surface mining overburden to be placed into headwater streams, eliminating the streams and adjacent valleys. I recognize that it is not our role to second-guess the expertise of a regulatory agency, but we must nevertheless ensure that the Corps fulfills its duties under controlling law. In this case, the Corps has simply failed to do its job.

In the context of mountaintop removal mining, the Corps’ § 404(b) dredge and fill regulations require the agency to assess the “nature and degree of effect” that discharges of mining overburden into headwater streams will have “on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. § 230.11(e) (2006). At a minimum, the regulations require some assessment of both stream structure and stream function. The Corps’ failure to assess stream function in this case and its later claim that an assessment of stream structure provides an adequate substitute cannot amount to a permissible construction of the regulations.

The ecological impact of filling headwater streams with mining overburden is both profound and irreversible. As the Corps itself acknowledges, “[i]t is well understood that the health of entire watersheds [is] dependent on functions provided by headwater streams.” J.A. 1823 (Black Castle combined decision document). The Corps goes on to explain that headwater streams provide a number of “important functions” including maintenance of natural discharge regimes, regulation of sediment export, retention of nutrients, processing of terrestrial organic matter, and exportation of water nutrients and organic matter to downstream areas. Id. The Corps does not credibly claim to have measured these functions for the permits at issue in this case.

Because the long-term environmental impacts of destroying headwater streams are not yet fully understood, permitting the filling of these streams without requiring the Corps to comply with its clear duty to assess functional impacts fatally undercuts the purpose of the regulations. The Corps’ Clean Water Act regulations require the agency to certify that any discharge of fill material will not cause or contribute to “significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c) (2006). Without the information provided by a functional assessment, the Corps cannot make that determination. No permit should issue until the Corps fulfills each distinct obligation under the controlling regulations. And this court should not defer to the Corps until the agency has done its job.

And another powerful dissent, discussed by Ken here, in another mountaintop removal case:

Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.

Here is Judge Michael delivering the 2009 James Madison Lecture at his alma mater, New York University’s School of Law.

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Image from U.S. Fish and Wildlife Service website.

A federal judge has overturned an Interior Department decision that removed the West Virginia northern flying squirrel from the endangered species list.

U.S. District Judge Emmet G. Sullivan issued this 30-page opinion on Friday, ruling that Interior’s Fish and Wildlife Service had improperly removed the animal from the protected list without first changing its recovery plan and following required public input procedures for doing so.

We’ll have more on this in tomorrow’s Gazette …

Secret meetings, March 25, 2011

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Today’s issue of The State Register contains no meetings that violated the public notice requirements of West Virginia’s open meetings law.

That makes two weeks in a row!

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.

Time for a fresh batch of stories that we appreciated this week:

After a 10-month investigation of the New Orleans Police Department, federal authorities released a report last week that detailed what the New York Times called “a department that is severely dysfunctional on every level: one that regularly uses excessive force on civilians, frequently fails to investigate serious crimes and has a deeply inadequate, in many cases nonexistent, system of accountability.” And this does not include a series of shootings by officers in the aftermath of Hurricane Katrina, which the investigators avoided as they are the subject of federal criminal probes.

As authorities in Japan struggle to reduce the radiation coming from nuclear plants damaged by the earthquake and tsunami, a “legion of grunts” is shouldering much of the burden, the Wall Street Journal reported. Many plant workers at the Fukushima Daiichi nuclear complex have been performing manual labor that exposes them to radiation while working for their regular wages. The companies say they haven’t considered higher pay or extending extra health benefits for these workers because they are too busy dealing with the crisis, according to the article.

U.S. Army Spc. Jeremy Morlock pleaded guilty Wednesday to murdering three unarmed Afghan villagers while serving as a member of the 5th Brigade (Stryker), 2nd Infantry Division, which is based in Joint Base Lewis-McChord, the Seattle Times reported. As part of his plea deal, Morlock is expected to testify against four other members of his platoon alleged to have been involved in the killings, which were then staged to look like legitimate combat fatalities. Murlock — who also admitted that he conspired to commit the murders, regularly used drugs and assaulted another soldier who threatened to expose his drug use — said he lost his moral compass, and admitted that there was a concerted plan to kill people during his unit’s tour in southern Afghanistan, which lasted from the summer of 2009 to the summer of 2010.

Secret meetings, March 18, 2011

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Today’s issue of The State Register contained no meetings that violated the public notice provisions of West Virginia’s open meetings law.

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.

In this Feb. 16, 2011 photo, the buildings and smokestacks of the 460-acre Bayer CropScience chemical complex are visible from a softball field on the campus of West Virginia State University in Institute, W.Va. (AP Photo)

Here’s a take on today’s news about Bayer from The Associated Press:

INSTITUTE, W.Va. (AP) — For the first time in 26 years, Barbara Oden can let go of the image that has haunted her — poisonous gas leaking from a Union Carbide tank and killing thousands of people in Bhopal, India, in the world’s deadliest industrial disaster.

On Friday, she and other residents of a tiny West Virginia town won what had seemed like a never-ending battle to get the same toxic chemical, methyl isocyanate, out of their back yard.

In a surprise move in U.S. District Court in Charleston, attorneys for Bayer CropScience announced they were dropping plans to resume production of the chemical, commonly called MIC, and would begin dismantling the unit.

That ends the key part of the latest lawsuit in a nearly three-decade battle. Claims for property damages and medical monitoring remain, and Judge Joseph Goodwin has scheduled a hearing Monday on the remaining issues.

But Bayer’s decision erases a threat that loomed over the people of Institute for a generation.

The company will no doubt replace MIC, which is used to make a pesticide, with some other chemical, but nothing could be as bad, said Oden, a retired biology professor at West Virginia State University who still lives next to the plant.

“Chemicals don’t have to kill,” she said.

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I’m just back from federal court, where Bayer CropScience lawyer Al Emch informed Chief U.S. District Judge Joseph R. Goodwin that the company has decided not to resume production of the deadly chemical methyl isocyanate at its Institute plant.

Here’s Bayer’s news release:

Bayer CropScience today announced that the company has decided not to restart the transitional production of methyl isocyanate (MIC) at its site in Institute, West Virginia. As a result, the company will move forward immediately with decommissioning of the reconfigured MIC and associated production units as well as the closure of Woodbine.

Bayer CropScience was planning to start the MIC unit and begin transitional production of the Temik® brand insecticide early this year, but uncertainty over delays has led the company to the conclusion that a restart of production can no longer be expected in time for the 2011 growing season.

The safety of the MIC plant, which was overhauled completely and technically modified during the past months, was confirmed again by a federal court-commissioned expert report on the plant’s safety, which was delivered to the court this week. However, against the background of the continuing uncertainty regarding the timing of resumption of production, the company needed to make a decision.

UPDATED: Here’s a link to the audio of a Bayer conference call with reporters that just ended —



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