Sustained Outrage

Open letter to the Chemical Safety Board

Maya Nye from People Concerned About MIC passed on this Open Letter to the federal Chemical Safety Board about the board’s decision to cancel a public meeting about the deadly August 2008 explosion at the Bayer CropScience plant in Institute. The letter was signed by People Concerned and more than a dozen other citizen groups. Here’s what it says:

March 3, 2009

John Bresland, Chairman/CEO

U.S. Chemical Safety and Hazard Investigation Board

2175 K. Street, NW, Suite 400

Washington, DC 20037-1809

Dear Chairman Bresland:

With the support of numerous international groups, I write to you on behalf of my community and as the spokesperson for People Concerned About M.I.C. to beseech you to hold a timely public hearing regarding the preliminary results of the U.S. Chemical Safety and Hazard Investigation Board (CSB) investigation into the August 28, 2008 explosion at the Bayer CropScience facility in our community of Institute, West Virginia.

As you are well aware, our community is gravely concerned about the events that occurred that night as well as the lack of corporate accountability to our community that has been consistently displayed with this facility.

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mcclendon-299x400.jpgChesapeake Energy Corp. and its executives haven’t been making many friends lately in West Virginia after announcing last week their plan to turn their Eastern Division regional headquarters in Charleston into a field office and eliminate 215 of 255 jobs here.

And don’t forget CEO Aubrey McClendon’s parting shot at the state judicial system. McClendon blasted the state Supreme Court for failing overturn a $405 million Roane County court award to royalty owners, rather than blame his company’s calculated business decision to take on that risk when it bought Columbia Natural Resources four years ago.

McClendon said the job cuts were inevitable once the company decided not to build a $40 million headquarters near Yeager Airport.

Last year was not particularly kind to Chesapeake, or to energy companies in general, as natural gas prices plummeted. Chesapeake’s stock price fell from a high of $74 last summer to its current level of around $14 — a drop of more than 80 percent.

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blankenshipap.jpgbenjaminap.jpgThe transcript of today’s oral argument in the Brent Benjamin-Don Blankenship case before the U.S. Supreme Court has been posted online here.

And here’s some early analysis from SCOTUSblog:

Tugged between a sense that a constitutional ruling on judges’ duty to take themselves out of cases if bias is suspected should provide very clear guidance, and a sense that it might be written only to apply in the most extreme factual scenarios, the Supreme Court set itself a difficult task as it moves toward a ruling in Caperton, et al., v. A.T. Massey Coal Co., et al. (08-22), heard Tuesday during an intense hour of exchanges with two harried advocates.

While Justice Anthony M. Kennedy may wind up with the deciding vote in a Court plainly split over the issue, he himself seemed torn between a standard of recusal that would be precise in scope, and a standard that would be no more specific than “an appearance of bias.”  And the bloc of Justices whose votes would seem to be necessary to craft any constitutional decision on recusal focused on ways to make it at least fit this particular case, but perhaps no others.  One of those Justices, John Paul Stevens, remarked at one point: “We have never confronted a case as extreme as this before.”

It was obvious that Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia were leaning heavily against writing a new constitutional rule on recusal, and it also appeared that Justice Samuel A. Alito, Jr., might wind up at that conclusion, too.

On the other side, Justice Stevens’ seeming perception that something had to be crafted to deal with situations like that involving an elected justice of the West Virginia Supreme Court might well be shared by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

Back in 2006, Massachusetts went the route of requiring all state residents to buy health insurance. Those who could not afford it would get help from the state to buy low-cost options. Those who did not comply would be fined. This morning, NPR reported that the effort has created a new market for unscrupulous insurance companies. In some cases, companies sell cheap policies to Massachusetts residents, but the policies do not meet state requirements, so low-income, struggling residents are out what they paid for the insurance, they can still be fined by the state, and they still don’t have reliable coverage.

Health plans for everyone

My Saturday column listed a few of the things that West Virginia Gov. Joe Manchin proposed to extend health insurance to at least some of the 245,000 West Virginians who don’t have it. Insurance means access to timely health care. Without it, it can be hard to get through the door to see a doctor. People who don’t have it tend to put off medical care until their suffering is unbearable, and their problems are more difficult — and more costly — to treat.

Renate Pore of the West Virginia Center for Budget and Policy has been analyzing health policy in West Virginia since 1991 and has worked in community health care even longer. She has a more thorough rundown of what she thinks will work and what won’t.

Meanwhile, the Legislature’s Select Committee D created the Roadmap to Health Project. Lawmakers paid $100,000 for consultant Kenneth E. Thorpe, an Emory University professor and former health official in the Clinton Administration, to compile solutions to this enduring problem. Thorpe gave his report in January.

The Associated Press had a story yesterday (also see page 1A of today’s print edition Gazette) about the West Virginia National Guard trying to find some troops who may have been exposed to the toxic chemical hexavalent chromium while they were serving our country in Iraq.

The story noted that a lawsuit had been filed in December by 16 Indiana National Guard soldiers against defense contractor Kellogg Brown & Root Inc., alleging the troops.
A lawsuit filed in December by 16 Indiana National Guard soldiers against defense contractor Kellogg Brown & Root Inc. claims the troops now have respiratory system tumors associated with exposure at an Iraqi water treatment plant (where apparently the chemical had been used to remove pipe corrosion).

Readers who are interested in more information about this might want to check out (read, listen or watch) this edition of the show Democracy Now! The show covers the issue in much more detail and includes a link to the lawsuit against KBR. Michael Doyle, lead lawyer for the guardsman, explained:

KBR actually very clearly—and we know this from some testimony that KBR managers have already given in a kind of a suit by the civilians, that they absolutely knew that there was sodium dichromate out there at the facility. It’s absolutely also clear that that’s one of the most dangerous carcinogens. This stuff—and folks may have heard about hexavalent chromium in the Erin Brockovich, where they had relatively small amounts, very serious consequences. There were bags of this stuff. And at least some of the testing showed 1.9 percent of the soil was actually sodium dichromate around this site. And despite being paid well to do a site assessment; to do this project; to make sure that the folks out there, the civilians and the soldiers, were protected; they basically just kept ignoring it.

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Chemical safety?

The federal Chemical Safety Board has been in the news for calling off a public meeting under pressure from attorneys for Bayer CropScience. Bayer apparently doesn’t want Kanawha Valley residents to know how close a tank of deadly methyl isocyanate was to the explosion last August at the Institute plant. So far, the board is willing to go along with this secrecy.

But at about the same time that explosion occurred, the Chemical Board was also being criticized, in a report to Congress from the U.S. Government Accountability Office.

The board is modeled after the National Transportation Safety Board, and its job is to investigate the causes of chemical accidents and recommend reforms to make the nation’s chemical industry safer. Unlike EPA or OSHA, the board has no real regulatory authority. It just investigates and makes recommendations.

But the GAO found in an Aug. 22, 2008, report that the board wasn’t doing enough and, in fact, had not implemented reform recommendations made back in 2000:

First, there’s the “investigations gap.” The CSB investigates just a fraction of the incidents that meet its triggering definition. GAO reported that the board doesn’t report to Congress on this gap, and has no plan to eliminate it. Said the GAO:

By not investigating all accidental releases that have a fatality, serious injury, substantial property damage, or the potential for a fatality, serious injury, or substantial property damage, CSB continues to fall short of its statutory mandate.

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Secret courts I

Later this month, national media groups will celebrate “Sunshine Week,” to call attention to the need for more openness in our government. Did somebody in West Virginia’s court system declare last week “secrecy week” and just not tell us?


First, there was Monongalia County Circuit Judge Susan Tucker, who sealed the lawsuit filed against West Virginia University and various university officials by former provost Gerald Lang. Lang, of course, resigned from his administrative post last year over his involvement in the decision to award Gov. Joe Manchin’s daughter a master’s degree. Tucker later unsealed the lawsuit, but her reasons for initially sealing it remain unclear.

halloran.jpgThen, there’s the curious case of Kanawha County Magistrate Tim Halloran, who closed his courtroom to the media and the public during preliminary hearing for a Charleston police officer charged with soliciting sex with a minor. When called seeking some explanation for his closing the proceeding, Halloran said:

If you’re calling about Friday night, I run a courtroom, not a newsroom.

(If that weren’t enough, Halloran’s response after that has been to demand that news reporters who park near the courthouse be ticketed.)

So perhaps a quick review is needed of what West Virginia’s law requires regarding open courts…

First, there’s Article III, Section 17 of the West Virginia Constitution:

The courts of this state shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.

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As tomorrow’s U.S. Supreme Court oral argument on the Brent Benjamin-Don Blankenship connection  approaches, more media stories are coming out about the high-profile case over whether Benjamin should have stepped down from considering a big-money appeal involving Blankenship’s Massey Energy Co.

frey.jpgolson.jpgThe Washington Post had a story today,  points out that the case will be argued by “two of the court’s most prolific and persuasive practitioners, former solicitor general Theodore B. Olson and Andrew L. Frey.”

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In case you missed it on Sunday, or if you want another look, Phil Kabler and Brenda Pinnell created this somewhat irreverent civics lesson. Click here or on the picture above.

(Cross-posted from the Squawk Box)