Sustained Outrage

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Commercial Photography Services of West Virginia

U.S. District Judge John T. Copenhaver Jr. just issued an interesting ruling in the pending class-action case against West Virginia American Water Co. and Eastman Chemical over the water crisis that followed the January 2014 Elk River chemical spill.

In short, Judge Copenhaver wants both sides to submit additional legal briefs to address the role of Eastman Chemical — which sold MCHM to Freedom Industries — in the water crisis case. Plaintiffs in the case argue that Eastman violated the federal Toxic Substances Control Act, by not properly testing the chemical or warning buyers or the public about potential health impacts, or about possible safety concerns related to the type of storage tanks Freedom used.

Specifically, the judge says:

… The parties should address the facts supporting a conclusion that plaintiffs have suffered an injury, fairly traceable to Eastman’s alleged violation of the Act, which will be redressed by a favorable decision of this court.

Briefing should also consider whether Eastman’s alleged noncompliance with the Act constitutes a “real and immediate” threat of injury supporting injunctive relief.

The additional legal brief from the plaintiffs is due Aug. 2, with any Eastman response due by Aug. 9. You can read the judge’s order here.

 

 

Judge presses for deal on chemical spill records

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Coal Water Pollution

The former site of Freedom Industries, shown in an Associated Press file photo take just after the January 2014 chemical spill. The tanks have since been removed.

We learned last week of some potential bombshell disclosures in the documents filed in the chemical spill case that’s being pursued against West Virginia American Water Co. and Eastman Chemical:

Eastman Chemical Co. did not properly caution Freedom Industries about the potential for the chemical Crude MCHM to corrode Freedom’s storage tanks prior to Freedom’s January 2014 leak that contaminated the Kanawha Valley region’s drinking water supply, lawyers for area residents allege in new court filings this week.

Lawyers for residents also alleged in their court filings that then-Freedom Industries official Dennis Farrell tried unsuccessfully on the morning of the leak to convince a West Virginia American Water Co. official to turn off the intake pumps on its Elk River treatment plant, located just 1.5 miles downstream from the site of the Freedom facility.

But we also know that key documents that could tell us more about all of this — and about the story of a long-forgotten intake West Virginia American originally had above the Freedom industrial site — remain under seal, pending a final ruling on their status by U.S. District Judge John T. Copenhaver.

On Friday, Judge Copenhaver pressed the parties in the litigation to come up with a deal about those records. In a two-page order, the judge said:

That counsel for all parties and any public document custodians be, and hereby are, directed to meet and confer on or before July 15, 2015, toward the end of reaching an agreement that would result in spreading on the public record the documents presently lodged with the court under seal as presented for filing on May 18, 2015, and May 28, 2015, and July 6, 2015.

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Details of Monsanto dioxin settlement revealed

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A view of the Monsanto plant in Nitro,  1980.

Details of the big dioxin class-action settlement between Monsanto Co. and residents of the town of Nitro have been pretty scarce since the Gazette’s Kate White broke the news about the deal two weeks ago. Broad outlines of the agreement were discussed in a court hearing, but those mostly recited what was included in a news release issued by Monsanto officials.

But now, the Gazette has revealed much more information about the settlement in this new story — and we’ve posted copies of the medical monitoring settlement and the property cleanup settlement online.  We’ve also posted a legal brief in which lawyers for current and former Nitro residents outline the terms of the deal and urge its approval by the court. Among other things, Charleston attorney Stuart Calwell argues:

The Settlement Agreements provide for ample funding to accomplish its goals. The Funds created by the Settlement Agreements will pay for medical testing and residential cleanup for potentially thousands of West Virginians. Plaintiffs have sought two remedies in this litigation: medical monitoring and property cleanup. The Class Settlements provide both.

One reason that details of the settlement have been hard to come by is that the two judges who have handled the case — Putnam Circuit Judge O.C. Spaulding and Mercer Circuit Judge Derek Swope (appointed by the Supreme Court to hear the case after Spaulding recused himself) — have imposed broad gag orders on the lawyers for both sides.  The local circuit clerk hasn’t made it any easier. The Gazette had to file a formal Freedom of Information Act request to get electronic copies of the settlement documents that we’ve posted online (the clerk wanted to charge us $1 per page for the .pdf files, an amount that we didn’t believe was “reasonably calculated to reimburse it for its actual cost in making reproductions of such records” under the state FOIA).

Interestingly, on Monday, one lawyer in the case filed this motion asking Judge Swope to lift the current gag order. Attorney Tom Urban has clients who are members of the class covered by the settlement, but his firm is not the “class counsel” and didn’t work out the settlement. Urban has raised some questions about the deal, and told the judge that, with the settlement, the reasons for any gag order have evaporated:

The original purpose of the gag order was to ensure that the prospective jury would not be tainted by information that would affect their ability to properly exercise its role in an unbiased manner, and the order was subsequently expanded further on the eve of jury selection. Now that this Court released the jury during a hearing on February 24, 2012, the exercise by counsel and others under the First Amendment to discuss the settlement with all interested persons, including absent class members, the public, and the press, no longer caries with it the substantial likelihood of materially prejudicing those proceedings.

As a result, those various gag orders must be lifted or they run afoul of the First Amendment and themselves risk prejudicing these proceedings by inhibiting communication by all sides concerning the fairness, reasonableness, and adequacy of the proposed class settlement.

Long story of Monsanto and dioxin continues

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Five of the plaintiffs in the 1984 dioxin lawsuit against Monsanto Co. in Nitro stand outside the courtroom. Left to right: John Hein, James Ray Boggess, June Martin, Gene Thomas and Charles Farley. Each man sued Monsanto for $4 million each, alleging that exposure to chemicals at the Nitro plant threatened their lives.  After an 11-month trial, jurors awarded $200,000 to Hein, but ruled against the other workers. Gazette file photo.

Over the last few weeks, the Gazette’s Kate White and I have been covering the run-up to the big class-action lawsuit trial against Monsanto Co. over alleged contamination of the town of Nitro by the company’s former chemical-making operations there.

Jury selection began last week, after another mediation effort failed. Once a jury is picked and trial begins, jurors will be asked to award thousands of current and former residents medical monitoring to allow early detection of diseases potentially linked to dioxin exposure. Several years ago, we published a lengthy Sunday story that explains in much more detail the allegations in the lawsuit (subscription required) about how Monsanto polluted the town.

As the photo above and Sunday’s story explained, this is certainly not the first major legal action to focus on Monsanto and dioxin:

An early sign of dioxin’s effects came in March 1949. A massive explosion rocked the Nitro plant when a pressure valve blew on a 2,4,5-T cooking container. More than 220 workers got sick.

Years later, more than 170 workers sued Monsanto, alleging dioxin exposure at the plant had made them ill. Cases involving seven of the workers went to trial in federal court in 1984.

After an 11-month trial, a jury awarded one of the workers, John Hein, $200,000 for bladder cancer he contracted because of exposure at the plant to another chemical, para-aminobiphynol, or PAB.

Jurors found that dioxin had made the other workers sick and that Monsanto had not acted diligently in seeking to determine the possible impact of exposure on worker health.

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The files on Benjamin Hill’s death

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Late last week I obtained a large file of documents concerning the death of Benjamin Hill, whose mysterious death at the Industrial Home for Youth prompted a West Virginia Supreme Court inquiry into the state Division of Juvenile Services.

In my story today, I write about how the documents suggest that Hill may have died of an overdose of an antidepressant he was prescribed.

Below is a look at the documents mentioned in the story. Click on the notes in the left-hand column to read about the notations. You can scroll to the bottom and click on a much larger (and therefore legible) pdf file of the documents.

Just in time for West Virginia Day celebrations on Monday, the West Virginia northern flying squirrel is going back on the federal endangered species list.

The U.S. Fish and Wildlife Service is set to announce the action in a notice to be published in tomorrow’s Federal Register. Here’s a copy of the notice.

Agency officials took the action in response to a federal judge’s ruling in March that they had improperly removed the squirrel from the protected list.

Bethany Cotton, a lawyer with the Center for Biological Diversity, one of the organizations that sued over the listing, said:

Threatened by logging, development and climate change, the West Virginia flying squirrel needs the protections of the Endangered Species Act to survive and recover. From now on, the Fish and Wildlife Service must follow its own science-based recovery plans before taking protections away from endangered species.

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We broke a story in this morning’s Gazette about three lawsuits in northern West Virginia that challenge a central practice of the region’s growing natural gas drilling industry: Dumping fracking waste on people’s property and then leaving potentially toxic pits behind when the drilling is done.

As we reported:

Larry and Jana Rine allege that Chesapeake unlawfully disposed of drilling wastes in the pit, then buried it and planned to leave it on a 210-acre property the Rines use as a part-time home and hunting camp at Silver Hill, east of New Martinsville.

Now, they allege, the company is using repair of a slip on its well pad as an excuse to haul away the wastes and potentially cover up what was really dumped into the pit.

Preliminary testing found the soil contained diesel fuel, benzene and a variety of other contaminants, court records show.

In a suit filed late last year, the Rines argued that it’s not “reasonably necessary” — the legal test for activities allowed by state natural gas laws — for Chesapeake to leave a buried waste dump in order to extract the gas it owns beneath the Rine property.

“These cases are just common sense and common law,” said Brian Glasser, a Charleston lawyer who represents the Rines and has filed two other, similar cases against Chesapeake. “You can’t bury a bunch of waste in somebody’s yard. It’s that simple.”

If successful, the lawsuits could force major changes in the way companies handle the huge amounts of wastes generated as they rush to drill for natural gas in the lucrative Marcellus Shale formation.

Here’s a copy of the legal brief that prompted U.S. District Judge Frederick P. Stamp to issue a temporary restraining order against Chesapeake:

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 …

About Judge Goodwin’s chemical plant expert …

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UPDATED: Here’s a link to a feature photo from Friday’s Gazette showing the pro-Bayer driving procession yesterday evening.

We broke a story in today’s Gazette detailing the long-standing views of Sam Mannan — the court-appointed expert in the Bayer MIC case — against government regulations to mandate chemical plants more closely consider “inherently safer technologies.”

As we explained:

A chemical engineer appointed to advise U.S. District Judge Joseph R. Goodwin about the safety of Bayer CropScience’s controversial methyl isocyanate unit has consistently opposed new rules that would push companies to reduce the use and storage of large amounts of toxic materials.

Sam Mannan of Texas A&M University has, for nearly a decade, been a critic of efforts by environmental and labor groups to force chemical companies to study and implement “inherently safer technologies” for their manufacturing plants.

Mannan has testified before Congress on the issue several times, warning lawmakers against adopting such language. At Texas A&M, he directs the Mary Kay O’Connor Process Safety Center, which published a 2002 report that industry often cites in criticizing proposals for such regulations.

Last month, Mannan cautioned a House subcommittee that requiring “inherently safer technologies” might sound good, but is more complex than it sounds and could create more problems than it solves. Mannan said there is no widely accepted way of determining what “inherently safer” means, and questioned whether government regulators should try to come up with one.

“There are dangers associated with mandating a specific assessment model, or requiring an overly burdensome assessment regime,” Mannan testified at a Feb. 11 hearing of a House homeland security subcommittee.

For those who want to read more about this, some of Mannan’s congressional testimony is available here and here. And this is a link to his “White Paper” on the topic. My story in our print edition also quoted this testimony from Greenpeace’s Rick Hind and this testimony from former U.S. Chemical Safety Board member Andrea Kidd Taylor.

Based on the White Paper, Mannan’s favorite analogy seems to be comparing implementation of safer technologies at chemical plants — such as storing less of extremely toxic chemicals — to whether you live in a one- or tw0-story house or whether you install stairs in your house:

One of the most common accidents at home is falling on the stairs. A home without stairs, i.e. a onestory bungalow, is inherently safer with regard to falling on stairs than a two-story house. Even if the stairs are equipped with handrails, non-slip surfaces, good lighting, and gates for children, the hazard is still present (Kletz, 1998). Obviously the choice of an inherently safer house implies positive and negative consequences, which may include aesthetics, cost, and other types of hazards. An elevator could reduce the use of stairs but requires a large capital expense. During construction there would be significant hazards to the residents and construction workers and the stairs would still be necessary for emergency egress. Few families would conclude that installing an elevator is the best use of their resources.

And judging from his congressional testimony, Mannan has some, well, interesting ideas about why chemical companies should be careful including their workers in finding ways to protect plants from terrorists:

While I think consultations of employees and involving employees is very important and should be done, but it should be done carefully. There is a two-edged sword there, and one of the issues we deal with in anti-terrorism issues is the insider threat. In my own testimony I provided some statements as to the threat from not only al-Qaida but mutations of the organization of al-Qaida and their associations with organizations that may have ideological or different view, but maybe anti-establishment and may develop a collaboration with al-Qaida type organizations. So insider threat is an issue that is something that we need to be aware of.