Sustained Outrage

water intake

 

Late Monday afternoon, U.S. District Judge John T. Copenhaver made public the “term sheets” in tentative class-action settlements with West Virginia American Water Co. and Eastman Chemical Co. aimed at resolving litigation over the role both companies played in the water crisis that followed the Jan. 9, 2014, chemical spill at Freedom Industries.

The settlements are far from final, and there are many steps left to go before residents, businesses and workers will see any compensation. Here’s a look at what we know and what we don’t know at this point:

How much money is involved?

The total settlement amount is up to $151 million. It’s “up to” that amount because at some point, if claims filed by residents and businesses don’t use up all the money, some of it will go back to West Virginia American and Eastman.

Of the total amount in the two settlements, $126 million of it will come from the deal with West Virginia American Water, its parent company, and an affiliated service company. The other $25 million comes from Eastman Chemical. It’s not entirely clear at this point how much of the settlement comes from insurance policies, but a new lawsuit filed by West Virginia American against one of its insurers suggests some of the water company’s insurers are paying, but at least one of them had as of Friday been balking at providing coverage for the settlement.

What is the settlement about?

The central lawsuit that prompted the settlement is called Crystal Good v. American Water Works Co, for a local resident who was the lead named plaintiff and for West Virginia American Water’s parent company. It was set for a trial to start on Oct. 25, in which the focus was not so much what caused the Freedom Industries spill, but what caused the spill to be allowed to contaminate the region’s drinking water supply.

While West Virginia American Water and Eastman in their defense wanted to point to Freedom’s criminal negligence, the plaintiffs planned to present a detailed case about the water company and Eastman.

For example, the plaintiffs planned to present evidence that West Virginia American was treating and storing drinking water at far below its capacity in the cold days prior to the spill, leaving it with little in the way of backup water that would have allowed it to briefly close the Elk River intake until the worst of the spill had passed.  Plaintiffs alleged that the water company, by allowing the drinking water to be contaminated, had breached its contract with its customers across the region. The plaintiffs alleged that Eastman didn’t warn Freedom Industries that the Crude MCHM Eastman sold could corrode Freedom’s chemical tanks, and that Eastman officials knew the Freedom site was in terrible disrepair, but did nothing about it.

The trial itself, though, was only going to be about fault — whether the water company and Eastman were liable for the drinking water contamination. Had the plaintiffs gone to trial and won on that issue, any awarding of monetary damages could have taken much longer, through a separate legal proceeding.

Who is covered by the settlement?

The case that was set for trial covered a broad class that included three categories of people: Everyone who lived at the time of the spill in a dwelling supplied with tap water by the West Virginia American Kanawha Valley Treatment Plant, everyone who at that time owned a business supplied with water by that plant, and everyone who worked at a business supplied with water from the plant, but who lived in a dwelling that got its tap water from some other source.

Expert testimony in the pre-trial phase of the case put the size of the resident class at about 224,000 people and the business owner class at more than 7,300 people. It is not clear how many wage earners could be covered.

The water company settlement’s term sheet, though, states that a final agreement — still to be prepared by the lawyers for both sides — “will identify a proposed settlement class” that would have to be approved by the court.

What if I didn’t sign up for any lawsuits?

Generally speaking, class actions don’t work that way. Anyone who fits into the class definition that is eventually approved by the court as the “proposed settlement class” would automatically be part of the case. The intent of the settlement is to resolve all litigation over the water crisis with Eastman and West Virginia American. This includes not just the “Good” case that was set for trial, but a variety of other cases that were pending in state and federal courts.

At least one case has already been identified as not being part of the settlement, one brought on behalf of the West Virginia Hospitality Association. People who fall within the definition of the class will also have an opportunity later to “opt-out” of the settlement. But the term sheets also indicate that, if enough people do that, the defendants can decide to pull out of the deal. For example, if more than 1,100 claimants opt-out of the Eastman settlement, Eastman can terminate its obligation to pay. West Virginia American can back out of the deal if either 900 individuals or 250 businesses opt-out of the settlement.

Continue reading…

Read the court filings in the water crisis case

Share This Article
Coal Water Pollution

 

 

water intake

 

The first clue I had I’d missed a potentially important story was the Facebook status update from Charleston City Councilwoman and water safety advocate Karan Ireland:

“Public hearing on WVAW’s SWPP. Where y’at?”

It all become more clear when Councilwoman Ireland posted this follow-up status:

There weren’t any journalists at tonight’s public hearing on West Virginia American Water’s SWPP. (And, only a handful of the “public”.)

I’m curious to know why there was no coverage.

While not exactly the second coming, this meeting was fairly important to readers in the Kanawha Valley. The whole reason that water utilities are being made to write plans for protecting their source water supplies is the Freedom Industries chemical spill, and the effects it had on the state’s largest drinking water facility, serving something like 300,000 people in Charleston and surrounding communities. The hearing offered a chance for local residents to comment on West Virginia American Water’s plan, and perhaps mention things like the need for a secondary, backup water source.

Folks like Councilwoman Ireland were understandably concerned that there wasn’t much turnout, and that perhaps the lack of media coverage prior to the event played a role in that — and that the lack of media attendance of the hearing itself wasn’t such a great thing either.

Why was there no coverage? Well, I can only speak for the Gazette-Mail, but the answer is I didn’t know the hearing was taking place.

I should have. Public notice of the meeting — held last night in South Charleston — was right there on the Secretary of State’s website.  The notice was submitted to the Secretary of State on Aug. 23, and went on the website that very day, officials there tell me. The Department of Health and Human Resources and its Bureau for Public Health have a list of all the public hearing dates on its website here.

So how did I miss it? Well — I’m ashamed to say — I was waiting for the press release.

Continue reading…

Horowitz seeks return to Chemical Safety Board job

Share This Article

Lise Olsen has a story for the Houston Chronicle that folks who follow worker safety issues and the U.S. Chemical Safety Board will want to check out:

Horowitz_OfficialThe managing director of a federal agency assigned to investigate the nation’s worst chemical accidents publicly asked this week to be allowed to return to work after being suspended for four months, according to information released on his behalf by the nonprofit Public Employees for Environmental Responsibility.

Dr. Daniel Horowitz, a Ph.D. chemist, led the U.S. Chemical Safety Board since 2010 but was placed on paid administrative leave on June 16 pending an investigation into “possible misconduct.” That leave has been extended twice, leaving the agency without its top administrator even as it conducted probes into an accident that killed four at the DuPont plant in La Porte, among other major accidents nationwide.

Importantly, Lise’s story notes:

The small agency has had no further deployments since March – despite a series of fatal accidents, fires and explosions reported at chemical plants. One incident involved a tank explosion at a Louisiana plant owned by Williams Partners, which already was the subject of another CSB probe. Another incident involved a fire that injured four at a SunEdison plant in Pasadena.

Jeff Ruch, executive director of the group Public Employees for Environmental Responsibility, told Lise:

From what we can tell, the main thing the CSB is now investigating is its own executive staff.

Lise’s story said:

The CSB itself did not immediately issue a response. Its board meets Wednesday in Washington, D.C., to discuss ongoing probes, including review of the West Fertilizer plant explosion, the DuPont La Porte gas leak and the accident at the plant owned by Williams Partners in Louisiana.

Continue reading…

Plant Explosion

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

The new leadership over at the U.S. Chemical Safety Board does a lot of patting itself on the back about what it says is “a new emphasis on public transparency and engagement.” And those who continue to criticize the management of the board under now-ousted Chairman Rafael Moure-Eraso love to point to how they believe Moure-Eraso was too secretive about some things the board was doing.

And in fact, the new leadership’s plan to have regular, open-to-the-public business meetings provides an opportunity for lots of transparency, with public updates on investigations, and open discussion among board members and various other stakeholders about important worker and community safety issues.

But if the public isn’t able to see the important materials that board members are basing their discussions and votes on, that’s not really transparency.

The most notable example from yesterday’s board meeting was, as reported in our Charleston Gazette-Mail story,  was the refusal to make public the 42-page report detailing the urgent recommendations from CSB investigators for DuPont’s La Porte, Texas, plant.

There was another example, though, buried in some of the documents about the board meeting — and it’s an important one for West Virginia. The CSB’s list of “notation votes” (that is, votes not discussed or taken in public meetings) includes one that indicates the board considering changing the status of the AL Solutions response to its recommendations following an investigation of the December 2010 fire and explosion that killed three workers at the company’s plant in New Cumberland, Hancock County.

Continue reading…

Train Derailment

Survey crews in boats look over tanker cars as workers remove damaged tanker cars along the tracks where several CSX tanker cars carrying crude oil derailed and caught fire along the James River near downtown Lynchburg, Va., Thursday, May 1, 2014.   (AP Photo/Steve Helber)

We talked yesterday about the continuing concerns local residents have over crude-oil train traffic through the Kanawha Valley, and about the latest word from the Federal Railroad Administration on disclosure by railroads to local officials important data about their shipments of this potentially dangerous cargo.

Among other things, we pointed out that the FRA made it clear that railroads like CSX are indeed supposed to continue filing crude-oil shipment disclosures with state emergency response commissions.  But as Curtis Tate at McClatchy reported:

Of the states on the CSX crude oil network that McClatchy sought information from, only Virginia reported receiving an update in the year between June 2014 and June 2015, and that was a week after a CSX oil train derailed and caught fire in February near Mount Carbon, W.Va.

Rob Doolittle, a spokesman for CSX, said the railroad continues to be “in full compliance” with the emergency order. He added that the railroad recently sent new notifications to the affected states, “regardless of whether there was any material change in the number of trains transported.”

When we first checked in with the West Virginia Division of Homeland Security and Emergency Management about this yesterday, spokesman T.D. Lively told us that the State Emergency Response Commission had not received any updated material from CSX since an initial notification back in May 2014.

After hearing that from the state, we contacted CSX, sending an email to Rob Doolittle, the same spokesman quoted in Curtis Tate’s story. Initially, Doolittle told us:

We sent updates earlier this month to all states where CSX operates. I’m double-checking to see if there’s any information about the status of the report to West Virginia that is relevant.

Not too long after that, we heard back from Lively with an update from the state:

The SERC just received a call from CSX saying that we should be receiving additional information from them regarding shipments via mail in the next few days.

And then, after that, we got this note from CSX’s Rob Doolittle:

Following your query we checked with the West Virginia Division of Homeland Security and Emergency Management and confirmed that they had not received the report we mailed earlier this month. We have made arrangements for the report to be delivered tomorrow.

It’s worth noting, though, that regardless of what CSX sends to the state, the public isn’t likely to learn much from it. Lively says state officials are sticking by their position that most of what CSX provides is exempt from disclosure under the state Freedom of Information Act:

This does not change our position on the release of information marked confidential or proprietary by the railroad carrier. The information is made available to appropriate first responders in an unredacted form currently and will continue to be so. As more information becomes available we will release it to first responders.

Oil Train Rules

In this Feb. 17, 2015 file photo, crew members walk near the scene of a train derailment near Mount Carbon, W.Va.   (AP Photo/Chris Tilley, File)

Five months after the huge crude oil train derailment and fire out in Mount Carbon, W.Va., citizens are still concerned about what could have — and what still could — happen as these rail shipments through communities around the country continue. As Matt Murphy reported for the newly consolidated Charleston Gazette-Mail:

Only about 10 residents attended an information session at the Glen Ferris Inn regarding the ongoing remediation efforts surrounding February’s CSX oil train derailment in Mount Carbon.

However, the residents who did attend expressed concern about oil trains continuing to pass through the area in addition to worries over existing oil remnants.

CSX officials made no formal presentation during the meeting. Instead, residents and members of the public were invited to ask questions of railroad representatives at tables set up along the perimeter of the inn’s meeting room.

One Boomer resident, Kay Slayton, said she had concerns over exposure to benzene and other petroleum-related chemicals following the spill, as well as oil remnants in the area.

Slayton’s home is directly across the Kanawha River from the derailment. She and her husband, who were home at the time, witnessed the derailment and subsequent fires occur and evacuated to a nearby elementary school where she works.

“It was a very scary sight,” she said. “I saw something coming down the hill and it was on fire.”

At the same time, the Federal Railroad Administration issued an important notice today, as Curtis Tate reported for McClatchy:

The U.S. Department of Transportation warned railroads that they must continue to notify states of large crude oil shipments after several states reported not getting updated information for as long as a year.

The department imposed the requirement in May 2014 following a series of fiery oil train derailments, and it was designed to help state and local emergency officials assess their risk and training needs.

In a press release, Transportation Secretary Anthony Foxx said:

Transparency is a critical piece of the federal government’s comprehensive approach to safety.  DOT is committed to making certain that states and local officials have the information they need to prepare for and respond to incidents involving hazardous materials, including crude oil.  The Emergency Order that requires these notifications still stands, and we expect railroads to fully comply.

Curtis Tate explained:

In spite of increased public concern about the derailments, railroads have opposed the public release of the oil train information by numerous states, and two companies sued Maryland last July to prevent the state from releasing the oil train data to McClatchy.

The rail industry fought to have the requirement dropped, and it appeared that they got their wish three months ago in the department’s new oil train rule.

But facing backlash from lawmakers, firefighters and some states, the department announced it would continue to enforce the notification requirement indefinitely and take new steps make it permanent.

There have been six major oil train derailments in North America this year, the most recent last week near Culbertson, Mont. While that derailment only resulted in a spill, others in Ontario, West Virginia, Illinois and North Dakota involved fires, explosions and evacuations.

Some readers may recall that West Virginia officials — after initially appearing to be willing to rethink their initial secrecy on this issue — refused a Freedom of Information Act request for data they were given about CSX’s crude oil shipments in West Virginia.

 

Will the Chemical Safety Board survive?

Share This Article

Kulinowski

Obama administration Chemical Safety Board nominee Kristen M. Kulinowski testifies during a Senate confirmation hearing last week.

It’s growing increasingly difficult to see a light at the end of the tunnel that the U.S. Chemical Safety Board finds itself in these days. Here’s one of the latest takes on things, from the San Francisco Chronicle:

The tiny federal agency that has urged big reforms in how California regulates oil refineries is in disarray.

To some, the strife at the U.S. Chemical Safety Board — the 40-person authority charged with investigating industrial accidents and recommending ways to improve safety — bears strong resemblance to the headlines from developing nations:

Its leader, seen by critics as an autocrat, is forced out before his term is up. His successor takes charge in what detractors call a backroom maneuver and moves quickly to consolidate power, ordering loyalists of the ousted regime removed from their posts with the help of armed guards.

“What is going on at the Chemical Safety Board is a little slice of the eastern Ukraine here in Washington, D.C.,” said Jeff Ruch, executive director of the Public Employees for Environmental Responsibility, a group that advocates for government workers.

Meanwhile, he said, the board’s mission of pushing regulatory reform is languishing. “The industrial infrastructure is getting older, and we’re not doing anything about it.”

Engler_RichardLRNow, when I interviewed the CSB’s acting chairman, Rick Engler, a few weeks ago, he had some solid things to say. But in some ways, the jury is probably still out. For example:

—  Chairman Engler said that he disagrees with efforts by chemical industry lobbyists to narrow the scope of the board’s investigatory authority, but he also emphasized his belief that the board itself needs to narrow its priorities.  “We are a very small agency and we can be most effective by focusing on a small number of issues,” Engler told me.

— While he says that we are currently at a critical time of the Obama administration when it comes to any potential chemical safety reforms, Chairman Engler also does what so many people in the labor community appear willing to do: Let the heads of agencies like the Occupational Safety and Health Administration off the hook for not more aggressively using their rule-making authority these last nine years.  Engler noted his own view is “there isn’t any point” in criticizing OSHA chief David Michaels for his agency’s failure to move beyond the talking stage on the CSB’s “Most Wanted” safety reform: A new federal standard on deadly combustible dust. “The bottleneck is above his level and it’s unfortunate that we have a system that puts so many hurdles in front of urgently needed standards,”  Engler said.

The most impressive thing I heard from Chairman Engler, though, came when I asked him if he agreed with the conclusions of now-ousted Board Chairman Rafael Moure-Eraso in a New York Times op-ed piece that the United States is facing “an industrial chemical safety crisis.” Chairman Engler said:

I think there is a continuing crisis and under my watch I don’t want to wake up in the morning and hear about the next disaster where we have multiple facilities. I really genuinely believe that enough is enough.

Continue reading…

Does transparency really matter in W.Va.?

Share This Article
Gov. Earl Ray Tomblin

It seems unlikely that most West Virginians understand much about prevailing wage — what it is, why we have it, or how it’s calculated. About the only clear explanation that the media has provided came not from a statehouse reporter or business journalist, but from my friend, op-ed writer Rick Wilson:

Beginning in the 1930s, state and federal legislators, many of whom were Republicans, took steps to ensure that the wages paid on these projects didn’t undermine the local standard of living by granting contracts to fly-by-night low-wage contractors who often performed shoddy work under unsafe conditions.

This involved surveying the local labor market to determine what typical compensation was for given types of skilled labor. The wages that “prevailed” in a given area for nonresidential construction work became the basis for prevailing wage laws.

In his piece the other day, Rick also explained something that may be lost in all the recent back-and-forth about subpoenas and documents and whether the folks at Workforce West Virginia for some reason didn’t provide every single record they had in response to a legislative inquiry about how they came up with new prevailing wage figures:

The latest development is pretty unprecedented. Republican legislative leaders have subpoenaed Workforce WV to search for emails revealing the influence of “outside interest.” I’m pretty sure that these “outside interests,” if there are any, are actually West Virginians who may have communicated with a public agency. Sometimes you’ll have that in a democracy.

By contrast, model legislation to gut the prevailing wage came straight from the playbook of the ultimate outsider group, i.e. ALEC (American Legislative Exchange Council), a corporate-funded national effort to influence state policies in the interest of the very wealthy.

Now one thing that I think is clear, though not admitted, is that if there was some hint that a conservative group’s emails to a state agency or legislative office were being withheld from some investigation, the other side would think it was a pretty important issue. I don’t say that to suggest there’s any proof that anyone at Workforce West Virginia was trying to hide anything — and certainly not to suggest that the folks at the Affiliated Construction Trades Foundation were doing anything but exercising their rights when they emailed the state about prevailing wage issues.

My point is that both sides of the political debate here seem to care less about transparency as an actual important value in our system than about allegations about the lack of transparency as an effective tool to score points on a separate political issue.

How do we know this is true?

Well, consider what happened a little more than a year ago, when Gov. Earl Ray Tomblin and his staff thought that it was just fine to have a “stakeholder meeting” about leaking chemical storage tank legislation that included only representatives of the companies that own the chemical storage tanks. I don’t recall a lot of complaints from Republicans or Democrats in the Legislature about that, though it’s certainly true that the incident played a role in some Democratic legislative leaders insisting on long public discussions in committee meetings, and passage of a very strong bill.  Of course, we all know what happened after that, when the heat died down and there was less public focus on the issue.

Continue reading…

Judge presses for deal on chemical spill records

Share This Article

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.

Continue reading…