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Multi-Million Dollar Settlements Reached In Vapor Intrusion Cases

Posted in Citizen Suit, Contamination, Court Ruling, Government, Pollution, Uncategorized, Vapor Intrusion

In several prior posts on this Blog, we have reported on developments in two class action lawsuits filed by The Pollution Lawyers on behalf of Madison, Wisconsin area families who live near a factory owned and operated by Madison-Kip Corporation (“MKC”).  Contamination was discovered on the MKC site back in the early 1990’s. Despite oversight by Wisconsin state environmental authorities, neighboring residential properties were not tested for “vapor intrusion” (infiltration into homes of chemical gases released below the ground surface) until very recently.  These tests, when they finally were conducted in 2011 and 2012, revealed the presence within and beneath area homes of “PCE,” a carcinogenic industrial solvent that MKC had used in its manufacturing operations. Several area families asked The Pollution Lawyers to help them with this serious problem, and shortly after that the two class action cases were filed, seeking compensation for diminished property values and other damages and remediation of the contamination in the area.

Settlements were reached in both cases this summer, and they recently received necessary court approvals.  Under the two settlements, the area property owners will receive the combined total of $7.2 million. This amount is a significant percentage of the total assessed values of all of the homes in the two class areas.  Just as important, the settlements will result in extensive remediation of the environmental conditions at issue, including the installation and future maintenance (at MKC’s expense) of sub-slab depressurization systems on each home in the impacted area to protect the residents from vapor intrusion exposures while permanent measures are undertaken to completely abate the contamination in the area.

If you are concerned that your home may be impacted by vapor intrusion — whether by PCE, its sister chemical, TCE, or some other harmful substance — The Pollution Lawyers would be pleased to provide you with the most recent information available on this topic.

Environmental Discrimination in Richmond, California

Posted in Government, Pollution

Last week, in a blog called “Environmental Justice is a Civil Right”, I wrote about how polluting industries and the governments that enable them often choose to locate health-damaging factories among communities of poor minority citizens who don’t have the resources to resist.

A sad and compelling case in point is made by Javier Sierra in Huffington Post Green, in his article, “Richmond California: Exhibit A of Polluters’ Cruelty”. Javier explains how Richmond—a mostly low income Latino and African-American community—has been targeted by industry for a particularly cruel campaign of pollution.  Coal trains, which are parked in the town and then transported through the town, leave a blanket of highly toxic coal dust in their wake, including on school playgrounds. The chemicals in this dust—arsenic, lead, chromium, etc.—can cause cancer.  Mile-long trains carrying crude oil in rail cars with dangerously thin shells which are easily punctured, rumble through the town.  As Javier notes, and as we have also written about in our “CITIZENS AT RISK: Transporting Dangerous Chemicals By Train is A Massive Tragedy Waiting to Happen” blog, these trains are called “rolling bombs” for their history of causing death, injury and property destruction in the communities they pass through. And, as if all of that were not enough, the families of Richmond are surrounded by petro-chemical refineries, notorious for provoking high rates of cancer and other auto-immune diseases among those who live and work nearby.

Why is Richmond being treated like this?  The answer is as simple as it is disgraceful: these poor families don’t fight back. Because they can’t.

Unlike industry, they don’t have the resources to hire lawyers, consultants, and lobbyists to help them influence the location of polluting factories. And their government has abandoned them. The worst kept secret is how dangerous places like Richmond can be, especially to young children. And yet the government charged with protecting them will not do its job.

Until we recognize a clean environment as a civil right, and every citizen’s claim on that right to be equal, the families of Richmond, California—and families in many communities just like it throughout the country—will continue to suffer this discrimination, and the destruction, danger and disease that goes with it.

Environmental Justice is a Civil Right

Posted in Contamination, Government, Pollution

Co-authored by Gregory Zimmer of The Collins Law Firm, P.C.

Shouldn’t it be that living in a pollution-free community is a basic right of American citizenship?

Shouldn’t it be that having clean air to breathe and safe water to drink does not depend on whether you are wealthy, or well-educated?

It should be, of course, but it’s not.

Here is something I’ve learned in 15 years as an environmental lawyer:

Rich people don’t have environmental problems; or, if they do, the problems get powerful attention, very quickly.  For rich people—with big salaries and houses; graduate degrees; money enough to fund political campaigns; and kids going to private schools—lawyers, elected officials and government regulators almost reflexively align to come to their aid.

But what happens to everyone else?  In many of the cases that I and my partners have handled, and in nearly every contaminated community that we have visited, the victims of the contamination are the poor and middle class.  Often they are racial minorities. Many bought modest homes near an industrial plant, years ago, believing the proximity was an advantage.  Jobs were available.  They could walk to work. Maybe even go home for lunch. The plant would sponsor their sons’ and daughters’ little league’s teams.  A factory humming with activity and fat with profit would shoulder a big chunk of the community’s property tax burden, keeping the burden reasonable for the family-homeowners.

But, these seeming advantages came at a secret price:  the company’s reckless dumping of toxic chemicals out the back door, or belching of chemicals out of a smokestack, put directly in harm’s way the very folks who had made the company work, and, indeed, made the community work.  The chemicals wound up in the community’s groundwater—its drinking water supply—and in the air that the families were breathing in their yards and sometimes even inside their homes.  Years after the reckless chemical disposal occurred, and the company closed its doors, maybe even going bankrupt, the families were trapped in their contaminated and badly-depreciated homes, left to fend for themselves.

The Midwest—once the home to busy factories that made things for the entire world—is now pock-marked with communities wracked by decades-old contamination.

But sometimes, it works the other way.  Sometimes, rather than the families buying homes near (what turned out to be) a polluting factory, the toxic hazards actually followed the families.  In and around Los Angeles, for example, studies show that toxic hazards followed minorities, rather than the other way around.1 The politics of this is as obvious as it is harsh:  it’s easier to get a permit to locate an environmentally-dangerous facility near poor minorities than it is to locate it among the upper class.  What would be an intolerable threat in a community of the fortunate is, in a neighborhood of the disadvantaged, routine, and something the residents will just have to learn to put up with. They have no power to stop the intrusion into their peace and safety, and the violence to their health. Sometimes, they don’t even mount a protest. They have learned that it will do them no good.

Racial minorities truly bear the brunt of this.  Disproportionately, they live in aged, dilapidated buildings, or near industrial sites and roadways. They can’t afford to live anywhere safer.  So, they are exposed to pollutants like soot, smog and lead.  The US EPA says that that African Americans are 79% more likely than white Americans to live in areas where air pollution threatens their health.2 One particularly grim statistic: lead poisoning rates among Hispanic and African American children are roughly double those for white American children.  Double.  And there are 7 states where Asians Americans are more than twice as likely as whites to live in the most polluted areas. 2

We should be ashamed of statistics like this, stories like this.  Clean air and safe water should not be the exclusive privileges of the wealthy, or non-minorities.

What can we do to move forcefully in the direction of environmental justice for all?   Here are some ideas:

  • We must put the right to be free from pollution on the same legal footing as the right to be free from discrimination in, for example, schools, jobs and housing.  In other words, just as a landlord cannot refuse to rent to, or a school cannot refuse to admit, or an employer cannot refuse to hire, a minority because she is a minority, neither can a community allow its polluting factories to be sited exclusively, or even mainly, in neighborhoods of poor and minority citizens.  And neither can we continue to tolerate unhealthy air and water simply because it affects a community of citizens who—because they are poor or under-educated—do not know how to make their voices heard in order to demand their rightful share of government resources to protect themselves and their children.
  • If government is aware of an environmental problem that potentially threatens health, it must notify all affected citizens.  This sounds so obvious, and it seems that a law forcing government to do this should be unnecessary. Does government really have to be told that it must warn people who government believes to be in danger?  Sadly, yes, it does.  In our experience, many of the environmental problems that threaten communities were known to their government years, even decades, before anyone alerted those most likely to suffer.
  • Government regulators—who are charged with protecting against the ravages of pollution both the rich and poor alike—must regularly demonstrate through the issuance of publicly-available reports that they are devoting proportionate resources to protecting the health and property of the poor.  If they do not behave this way, those in charge at these regulatory agencies should lose their jobs, and perhaps suffer other consequences as well, if the failure to protect disadvantaged neighborhoods is either deliberate or reckless.
  • Likewise, government regulators must publicly acknowledge those instances where, due to resource limitations, they are unable to enforce environmental protection laws.  Seizing on the scarcity of tax dollars, industry groups lately have become quite adept at convincing lawmakers that they should cut funds for environmental enforcement as a way to balance their budgets.  It’s a fairly easy thing to do, because those most threatened by pollution cannot afford the lobbyists and access to governmental decision makers that well-healed corporate interests can.  Also, often the failure to enforce environmental protection laws does not produce an immediate and obvious problem.  The consequences of allowing a polluter to do more polluting often do not register for years (even though, when they do, the damage is often severe and irreversible).  When government confesses, “We cannot afford to protect you and your family”, the sheer harshness of this confession may shame decision makers into devoting more resources to environmental protection.  It may also jar affected citizens out of any false sense that they are being protected, and require them to take whatever steps may be available to protect themselves, for example, moving to a different community to escape unsafe air, or buying bottled water or a water filter to escape unsafe water.

1 Pastor, Manuel Jr. – “Racial/Ethnic Inequality in Environmental-Hazard Exposure in Metropolitan Los Angeles” – California Policy Research Center-University of California (2001) – Page viii

2 Pace, David – “Minorities Suffer Most from Industrial Pollution” – Associated Press (December 14, 2005)

CITIZENS AT RISK: Transporting Dangerous Chemicals By Train Is a Massive Tragedy Waiting to Happen

Posted in Contamination, Government

“We don’t need a higher body count before they move forward.”

– Deborah Hersman, NTSB Chairman 2009-2014

Co-Authored by Jaclyn Kostich of The Collins Law Firm, P.C.

  We’ve all been caught by one of those rumbling, seemingly endless freight trains that have become an increasingly common sight in our neighborhood. Have you ever wondered what’s inside them? As it turns out, the answer to that question has changed drastically over the years—and not for the better.

Inside the Rail Cars

  Railroads used to haul produce, furniture, and other life staples. Peek inside a freight train today and you won’t find strawberries or sofas. Instead, it’s quite likely you’ll find millions of gallons of crude oil, radioactive material, explosives, and some of the most toxic chemicals on earth. To name a few—methyl bromide, ethyl trichlorosilane, methanol, sodium chlorate, sulfuric acid, chlorine, toluene diisocyanate, and numerous other highly poisonous chemicals that most of us can’t even pronounce are transported by rail every single day. Many of these materials, if spilled, have a recommended evacuation radius of 5-10 miles and several are fatal if inhaled or absorbed through the skin. To think that this motley crew of chemicals makes its way down tracks that have houses alongside them; passes busy crossings lined with pedestrians and drivers; and zigzags through urban mega-centers—is mind-boggling, and more than a little bit scary.

The Federal Agencies Involved

  “This can’t be legal,” you’re thinking. Not only is it legal, our federal government purports to regulate it. The Federal Railroad Administration (FRA), a division of the U.S. Department of Transportation (DOT), is the main agency tasked with overseeing and regulating railroad safety. Additionally, the National Transportation Safety Board (NTSB) is the agency charged with investigating rail accidents and carrying out studies concerning transportation safety. The NTSB is intended to be non-partisan and apolitical in its findings and recommendations; but this comes at a price—NTSB has no regulatory authority, and its findings are nonbinding, which means rail industry lobbyists are usually successful in quashing any implementation of its recommendations. Inevitably, safety concerns only continue to mount.

  We won’t pretend to exhaustively list all the problems or solutions associated with transporting hazardous materials by rail. Rather, we advocate what the federal government is sadly missing—a sense of proactive urgency—an urgency to fix a broken and dangerous system that is historically laden with patchwork re-regulation, and which awakens from its slumber typically only in response to high-profile tragedies. We shouldn’t need such a tragedy before we remedy the most glaring problems.

The Problems

1.   People Have Already Died and Lives Have Been Put in Jeopardy. To name but a few: a Rockford, Illinois family of four, while waiting for a 114-car freight train to pass, was engulfed in flames when 18 cars carrying two million gallons of ethanol, derailed and exploded. The explosion set fire to their van and ultimately killed the mother and badly injured the father and pregnant daughter, who lost her baby as a result. And then there’s the Paulsboro, New Jersey derailment that leaked thousands of gallons of vinyl chloride and caused the evacuation of over 300 nearby residents. Or the Powellton Hollow, West Virginia derailment, where 27 of 109 railcars carrying 3.1 million gallons of volatile crude oil went off the rails near the Kanawha River, exploding and then burning for days, forcing an evacuation of more than 100 people. Nobody died in this case, but as we should have learned from Canada’s 2013 Lac-Megantic oil train derailment, when 47 people were killed and more than 30 buildings destroyed by the explosion and fire—a heavily populated area become deadly in an instant. According to a July 2014 report by DOT, over the next decade there will be an average of 10 derailments a year of trains hauling crude oil or ethanol. The federal government seems to be resigned to the fact that derailments and subsequent injuries to life and property will inevitably occur, and are rolling the dice on when and where it happens next.

2.   The Tracks are Old and Poorly Routed. Many of the rail tracks in existence are poorly maintained and susceptible to accidents. Additionally, many were built long before the cities were built around them. Therefore, serious attention should now be given to laying new tracks in less populated areas. The railroads are supposed to consider the condition and location of the tracks when choosing routes. In fact, the federal regulations require railroads to analyze various “risk analysis factors” before determining the “safest and most secure” route for hazardous shipments. However, it’s hard to feel any comfort from these seeming requirements because the federal government has not produced a single public assessment on the safety of routing. In fact, to date, a railroad has never been fined over its choice of route, despite being subject to periodic federal audits.

3.   There is A Lack of Transparency. No one knows what is being shipped or when, except the railroads. The four main freight railroads—Union Pacific Corp., Burlington Northern Santa Fe Railway Co. (BNSF), Canadian Pacific Railway Ltd., and Canadian National Railway Co.—all say they share information about crude oil shipments with local emergency responders. However, for materials other than crude oil, no laws, including the Emergency Planning and Community Right to Know Act (EPCRA) require them to do so. Rather, even the newest regulations require only that the railroads notify the State’s “fusion center” or information hub. It is then the hub’s duty to make sure the information trickles its way down to local responders in every single community through which the train passes. Is this being done? At this point there is no way to know for sure. The average citizen, even those living a stone’s throw away from the tracks, is left in the dark. DOT and the FRA cite “security” as the main reason for the non-disclosure. But when you consider the fact that federal regulations require each car/tank carrying dangerous goods to be publicly marked with a 4-digit number identifying the substance inside, the “security” reason seems like a hoax. Quite simply—the greater the risk to the public, the more transparency there should be.

4.   The Tank Cars Are Dangerous. The majority of crude oil is being moved in tens of thousands of DOT-111 tanker cars, called “soda cans” by critics because they are so easily punctured and crushed. Most of them can carry more than 700 barrels of oil or 30,000 gallons. The FRA finally addressed these sub-par rail cars by modifying its rules in May of 2015 (after 2 years of objections by industry officials). While the rules require thicker steel plating for tank shells and better thermal protection for any rail car/tank built after October 1, 2015 as well as all existing tank cars to be rebuilt in accordance with new safety measures by Jan 1, 2017, it still allows dangerous cars on the rails. Instead, the government should remove the most dangerous tank cars immediately, not allow a 2-1/2 to 5 year phase-out of the oldest tank cars, and a phase out that will take a decade for all dangerous tank cars. Additionally, these rules only apply to “High-hazard flammable trains” (HHFT), which DOT defines as “a continuous block of 20 or more tank cars loaded with flammable liquid or 35 or more tank cars loaded with flammable liquid dispersed through a train.” So, what does this even mean? It means that the railroads can easily avoid these rules by manipulating the number of tank cars carrying hazardous materials (i.e. never having more than 18 hazardous material train cars in a row or more than 35 hazardous material cars total throughout a train).

5.   Our Government Perpetuates the Secrecy. Quite frankly, throughout history—the federal regulations mostly have shielded American railroads from local or state oversight and have provided a blanket of secrecy over rail operations. Take for instance a quote from Republican Senator John Thune of North Dakota, chairman of the Committee on Commerce, Science & Transportation—which oversees rail safety—who clearly does not share our urgency:

“Without question, we must improve the safety of our nation’s rail system, but I am concerned about the unattainable deadlines the rule proposes,” Thune said. “The DOT issued this proposed rule without analyzing the potential tank car shop capacity needed to retrofit or replace over 100,000 DOT-111 tank cars.”

  Senator Thune feels the 10-year deadline is too fast? Not according to at least one of the experts in the field, Greenbrier’s (one of the nation’s largest makers of tank cars) chief engineer, Gregory Saxton:

“We think this industry has an amazing capacity to build more cars,” Saxton said. “If the demand is there, we’ll meet it.”

  The bottom line is if the government sets a 10-year deadline to address a problem, it will take every bit of that 10 years. Why not treat these changes as they should be treated—as though a tragedy already has occurred, and the time for change is NOW? Why are we waiting for a tragedy? A 10-year deadline means no one is operating with urgency. Take, for example, forty-five years ago, when DOT proposed positive train control (PTC), which monitors and controls train movement to avoid accidents. However, it wasn’t until 2008, after a train collision killed 25 people, that swift action was taken.

The Future

  Reactive regulation fails the public. What is needed, instead, is preventive regulation with rules that have immediate implementation, not decade-long rollouts. It is up to the government to make the rules and require the rail companies to abide by them if they want to remain in business. And if money is cited as a source of any delay, then regulations should be written so that those who financially benefit the most should pick up the tab—the companies who order the shipments and the railroads who do the shipping.

  In the long-term, we need a revamp of the federal agencies that are involved, including empowering the NTSB to require the FRA and DOT to explain in greater detail why they either are or are not adopting NTSB findings and recommendations or restructuring the NTSB so that it has binding authority. Over time, this can measurably improve public safety. However, until these meaningful immediate and long-term changes in the law occur, trains rumbling through our neighborhoods continue to be ticking time bombs.

Contamination in America’s Drinking Water, and The Harm It Causes

Posted in Contamination, Water

Co-authored by Gregory Zimmer of The Collins Law Firm, P.C.

What are the most common harmful chemicals in water that many Americans drink every day?

What harm can these chemicals cause to people?

The EPA regulates the nation’s drinking water supply through National Primary Drinking Water Regulations (NPDWRs or primary standards), which are legally enforceable standards that apply to public water systems. These standards protect public health by limiting the levels of contaminants in drinking water.1

However, drinking water sources can and do regularly fail to meet those standards—also known as Maximum Contaminant Levels (MCLs). Five of the most harmful chemicals that are often found in levels that violate those standards include:

(1) total trihalomethanes (TTHMs),

(2) manganese

(3) total haloacetic acids (HAAs)

(4) arsenic

(5) chloroform 2

During the 2004-2009 period, several thousand water systems in the U.S. contained unacceptable levels of one or more of those chemicals. Just one way those chemicals can get into your water supply is during the water treatment process. The chemicals react with organic pollution from agriculture or urban runoff, for example, and may then form harmful carcinogenic byproducts.

TTHMs can cause damage to the nervous system and reproductive problems, including miscarriages. This class of chemicals is also known to cause cancer of the bladder, heart, lungs, kidneys, and liver.3 Excess consumption of manganese has been linked to damage to the central nervous system, as well as pancreatic cancer.4 Studies show HAAs can cause severe skin irritation, and lead to an increased risk of cancer.5 Arsenic poisoning results in damage to the central nervous system, too—in conjunction with headaches, confusion, diarrhea, and sometimes ultimately death. Exposure to arsenic in drinking water may lead to elevated risk of bladder, kidney, lung, skin, colon, prostate, and liver cancer.6 Lastly, chloroform is a probable human carcinogen and may be linked to large intestine, rectum, and bladder cancer. In addition, chronic exposure to chloroform can cause liver damage and have central nervous system effects such as depression and irritability.7

Unfortunately, national drinking water standards do not tell the whole story. While water is tested for many of the most harmful chemicals, studies have shown there are chemicals in our water for which standards have not yet been set. Among them are perfluorinated compounds, which are used in the manufacture of nonstick and stain-resistant food packaging, fabrics, and cookware.8 Two of the most common perfluorinated compounds, perfluorooctane sulfonate (PFO) and perfluorooctanoate (PFOA), have been found in the blood of nearly every American. PFOs, used in Scotchgard until 2002, have been linked to attention deficit disorder (ADD) and thyroid disease. Studies have shown that there is a probable link between PFOAs in drinking water and high cholesterol, ulcerative colitis, testicular cancer, kidney cancer, thyroid disease, and pregnancy-induced high blood pressure.8 Common water treatment techniques fail to remove these compounds from drinking water.

 

1 United States Environmental Protection Agency – “Drinking Water Contaminants” (October 29, 2014)

2 Environment Working Group – “National Drinking Water Database—Study Findings” (December 2009)

3 Srinivas, Madabhushi – “What are Trihalomethanes?” – National Environmental Services Center (1999)

4 United States Environmental Protection Agency – “Manganese Compounds—Hazard Summary” (February 16, 2010)

5 University of Minnesota Public Health – “Disinfection By-Products Haloacetic Acids” (2003)

6 American Cancer Society – “Arsenic” (July 18, 2014)

7 United States Environmental Protection Agency – “Chloroform” (January 2000)

8 Scientific American – “Unregulated Chemicals Found in Drinking Water” (December 5, 2013)

Alarming Contamination in Los Angeles Groundwater

Posted in Contamination, Government, Groundwater

Co-authored by Gregory Zimmer of The Collins Law Firm, P.C.

Recently, the Luskin Center at UCLA released a study that highlighted the dangers of Los Angeles County’s water supply system. The results were staggering.

Approximately 40% of community water providers in Los Angeles County drew water from a groundwater source that was contaminated beyond state-set drinking water standards—known as Maximum Contaminant Levels (MCLs)—at one or more points during the span of 2002-2010.1  Areas serviced by such community water providers include but are not limited to: El Monte, Glendale, Lancaster, Long Beach, Los Angeles, Pomona, Santa Clarita, and Santa Monica. Some common contaminants are: Aluminum, Arsenic, Chloroform, Coliform (TCR), Manganese, Radon, and total trihalomethanes (TTHMs).2

Of every county in California, Los Angeles County has the greatest number of community water systems that rely on contaminated groundwater.1 Over a third of the water systems serving Los Angeles County rely entirely on groundwater. Such water systems are more common in small communities in the northern part of the county—an area troubled by local contamination and where there are few alternative sources for water. Small community water systems that serve fewer than 3,300 residents, the majority of which rely solely on groundwater, are found throughout the county—even in urban areas. Such water systems typically lack the technical, managerial, and financial capacity to overcome water treatment challenges and meet quality standards.1 Fortunately, most small systems draw from uncontaminated groundwater.3 However, most large community water systems serving the county partially rely on contaminated groundwater sources.1 While larger systems may have the resources to treat water, the costs to do so are projected to become a significant financial burden in the near future.1

Los Angeles’ groundwater contamination problem has the potential to disproportionately affect disadvantaged communities, low-income households, and the very young and elderly. Disadvantaged communities are populations that have low levels of formal education and experience linguistic isolation, poverty, and high unemployment.4 Individuals from such communities are more susceptible to illness from contaminated water, and may be unable to access adequate medical care.4 Low-income households cannot afford to buy bottled water in the quantities necessary to substitute for their tap water. Children under the age of 10 and seniors older than 75 years of age are especially vulnerable to adverse health effects from exposure to contaminated drinking water.5

We believe you have the right to know what is in your drinking water, especially if the water content violates your own state’s drinking water standard. Therefore:

  1. If you are concerned about what is in your drinking water, contact your local water supplier for a current consumer confidence report
  2. For current EPA drinking water violation reports, visit the EPA’s Safe Drinking Water Information System (SDWIS).
  3. For a water supplier-specific list of chemicals that have been found in the water they supply, visit Environmental Working Group’s National Drinking Water Database.

1 DeShazo, J.R. and Henry McCann. “Los Angeles County Community Water Systems: Atlas and Policy Guide Volume I” UCLA Luskin Center for Innovation. March 2015. Page 14

2 Health Alkaline – “Hey Los Angeles, Know What’s In Your Tap Water?”

3 DeShazo, J.R. and Henry McCann. “Los Angeles County Community Water Systems: Atlas and Policy Guide Volume I” UCLA Luskin Center for Innovation. March 2015. Page 16

4 DeShazo, J.R. and Henry McCann. “Los Angeles County Community Water Systems: Atlas and Policy Guide Volume I” UCLA Luskin Center for Innovation. March 2015. Page 22

5 DeShazo, J.R. and Henry McCann. “Los Angeles County Community Water Systems: Atlas and Policy Guide Volume I” UCLA Luskin Center for Innovation. March 2015. Page 26

Will Duke Energy Stop Committing Environmental Crimes?

Posted in Coal Ash, Contamination, Government, Groundwater, Water

On May 14, 2015, in a federal courtroom in Greenville, North Carolina, coal combusting giant Duke Energy pled guilty to committing 9 environmental crimes for its years of illegal discharge of coal ash pollution throughout the State of North Carolina.  Duke Energy will also pay some $102 million in fines and restitution.1

So, a big win for the environment, right?  Duke Energy will finally stop threatening the well-being of the people of North Carolina, right?

Not so fast.

Let’s first examine what Duke Energy did to get charged with these crimes, and then see whether we think the punishment is going to cause Duke Energy to change its polluting ways.

What Duke Energy Did

As part of its guilty plea, Duke Energy agreed that it had engaged in certain misconduct.  Duke Energy’s agreement is documented in a “Joint Factual Statement” (between Duke Energy and the federal government).2 This is just some of the misconduct that Duke Energy agreed it had committed:

  • For years, Duke Energy “failed to properly maintain and inspect the two stormwater pipes underneath the primary coal ash basin at the Dan River Steam Station in Eden, North Carolina.  On February 2, 2014, one of those pipes [that was 60 years old] failed, resulting in the discharge of approximately 27 million gallons of coal ash wastewater and between 30,000 and 39,000 tons of coal ash into the Dan River. The coal ash travelled more than 62 miles downriver…”3 (emphasis added).
  • From 1981 onward, Duke Energy either did not take seriously, or outright ignored, the repeated recommendations from its own consultants that these two pipes—including the one that failed, provoking an environmental disaster—be inspected for possible leakage and the possibility of failure.4
  • Since 2011, Duke Energy denied the repeated requests of its own employees at the Dan River Station that these same pipes be inspected with cameras, to determine if they were leaking, or likely to fail.  In fact, on at least two occasions, an engineer from the Dan River Station personally appealed to a Duke Energy vice-president, asking that the company pay for the camera inspections, so that the integrity of the soon-to-fail pipe could be determined.  The vice president said, “no” each time, even after the VP was told that, “if one of the pipes failed, there would be environmental harm.”  Duke Energy is a company worth $50 billion.  The camera inspection would have cost $20,000.5 (emphasis added).
  • Duke Energy also “failed to maintain the riser structures in two of the coal ash basins at the Cape Fear Steam Electrical Plant, resulting in the unauthorized discharges of leaking coal ash wastewater into the Cape Fear River.”6 (emphasis added).
  • Duke Energy’s coal combustion facilities “throughout North Carolina allowed unauthorized discharges of pollutants from coal ash basins via ‘seeps’ into adjacent waters of the United States.”7 (emphasis added).

Will Duke Energy Change its Ways?

Maybe the most important question in all of this is whether the punishment—i.e., mostly, the $102 million in fines—is going to cause Duke Energy to stop treating the State of North Carolina like its own dumping ground.  $102 million is a lot of money.  Is it enough to make Duke Energy behave?

Don’t bet on it.

Here are other facts that tell us that this punishment—while it may, as a practical matter, have been the best that the government could do under these circumstances8—isn’t going to bother Duke Energy in any way that really matters:

  • Misdemeanors Only. What were the crimes to which Duke Energy pled guilty for (among other things) knowingly and repeatedly ignoring its own employees’ and consultants’ advice to please test the pipes—an ignorance which evidently led to an unprecedented and catastrophic environmental disaster in North Carolina, that will likely require lifetimes to clean up?  All misdemeanors.  Not a single felony. A teenager caught with 1.5 ounces of pot can be charged with a felony in North Carolina.9
  • No One is Going to Jail.  The teenager with the 1.5 ounces of pot can get 3-8 months in jail. 9 But the serial polluter which caused an environmental disaster—scarring more than 60 miles of a state river with tens of thousands of tons of toxins1—after ignoring its own engineer’s warnings that if there was no pipe inspection, there might be “environmental harm”, got no jail time at all.
  • Too Rich to Care.  While $102 million is a lot of money, and is said to be the largest such fine in state history, it is but 5% of Duke Energy’s latest annual profit of $1.9 billion, and but 0.2% of its $50 billion net worth.1,10  In that context, $102 million doesn’t really even hurt; it’s merely the cost of doing business.
  • Where’s the Regulator?  The people of North Carolina are supposedly protected by the taxpayer-funded Department of Natural Resources (DENR).  But DENR has been coddling Duke Energy for years, and much of Duke Energy’s serial dumping on the state has gone on right under DENR’s nose, if not with DENR’s approval. In 2013, despite having evidence from conservationists of Duke Energy’s groundwater contamination, environmental groups were “forced […] to sue Duke [three times] under the Clean Water Act” because DENR failed to act. 1 Is anyone at DENR going to pay a price for the agency’s failure to stop Duke Energy’s perpetration of environmental crimes?  Is DENR going to have any incentive to not allow Duke Energy to do this again?  Not so far, it seems.

When you measure the crimes that Duke Energy admittedly perpetrated on the environment and people of North Carolina, against the fact that this admitted conduct is labelled as nothing more than a misdemeanor, and cost Duke Energy no more than an amount of profit that the company can make in a couple of weeks, would you expect that anything at Duke Energy is going to change?

1 Winston-Salem Journal – “Duke Energy Pleads Guilty to Causing Illegal Pollution” (May 14, 2015)

2 United States v. Duke Energy - Joint Factual Statement

3 United States v. Duke Energy - Joint Factual Statement – Paragraph 1

4 United States v. Duke Energy - Joint Factual Statement – Paragraphs 46-65

5 United States v. Duke Energy - Joint Factual Statement – Paragraphs 69-80

6 United States v. Duke Energy - Joint Factual Statement – Paragraph 2

7 United States v. Duke Energy - Joint Factual Statement – Paragraph 3

 

8 With this blog, I intended no criticism of the federal prosecutor or judge in this matter. I do not know all of the constraints within which they were operating. Rather, the point of the blog is to offer my opinion that the punishment here—even if the most severe available under these circumstances—is not likely to hurt enough to change Duke Energy’s environmental behavior.

 

9 FindLaw – North Carolina Marijuana Laws

10 The Charlotte Observer – “Prosecutors: Duke Energy Ignored Warning Before Ash Spill” (May 14, 2015)

 

 

“Scientific Study” or Paid Advertisement for Fracking?

Posted in Contamination, Fracking, Groundwater

In March 2015, Syracuse University hydrology professor, Donald Siegel, and a team of other scientists published a fracking study in Environmental Science and Technology, the bottom line of which is, basically, “fracking is safe”. At least that’s the way that the pro-fracking forces are selling it.

Specifically, Professor Siegel and his colleagues concluded that drinking water wells in Pennsylvania had not been contaminated with methane from nearby fracking wells. And they went further. They stated that their study was more rigorous than other—anti-fracking—studies, and implied that their study should be trusted more than the anti-fracking studies. As Siegel bragged: “Our data set is hundreds of times larger than data sets used in prior studies”—which had connected fracking to well water methane contamination—and that “may explain the difference in prior findings compared to our own.”1

Turns out that there is something else which “may explain the difference” between Siegel’s study and the anti-fracking studies—like who was paying Siegel to do his study in the first place.

Siegel and his colleagues initially declared on the face of their March 2015 study that they had “no competing financial interest”-–i.e., meaning they had no financial interest which might be fairly viewed to influence how they did their study, or reached its conclusion.1

However, the following month, they revealed the truth. And the truth is that:

· Siegel’s study was funded by a fracker. And not just any fracker, but a giant fracking company, Chesapeake Energy Corporation, the second-largest natural gas producer in the United States.

· As Siegel and his colleagues were forced to ultimately disclose in a “Correction” to their study, Chesapeake Energy “provid[ed] funding for the authors” of the study. Indeed, the “lead author [Siegel himself] was funded privately by Chesapeake” to do the study. That means that Chesapeake Energy didn’t, for example, provide Siegel’s employer, Syracuse University, a stipend to cover the study—no, it paid Siegel directly. And neither Siegel nor Chesapeake Energy has said how much he got paid “privately” to author conclusions so favorable to Chesapeake Energy.2

· Also, the “Correction” discloses that another of the study’s five authors, Bert Smith, “is a former employee of Chesapeake Energy”. In fact, during the very time that he was working on the study, Smith was “employed by” a company that was doing consulting work for Chesapeake Energy.2

It’s no accident that it was Chesapeake Energy which was the patron for the Siegel study. Chesapeake Energy had a sizeable financial interest in the study’s fracking-favorable conclusions, given that it has:

· Been aggressively fracking in the very area of Pennsylvania which the Siegel study concerned;3

· Paid millions in settlements to Pennsylvania residents who claimed that Chesapeake Energy’s fracking contaminated their well water (though Chesapeake denies causing the contamination);3 and

· Reportedly fought the federal EPA’s effort to study the dangers of fracking.3

Stripped of its initial secrecy over Chesapeake Energy’s financing, the Siegel study is now exposed as a fracker’s naked attempt to use the credibility of seemingly serious scientists in order to support fracking. Were the seemingly serious scientists willing to be used for that purpose? Now that the truth has come out, I believe that the Siegel “study” will no longer be seen—if it ever was—as a serious contribution to the fracking debate, but rather as an advertising pamphlet for Chesapeake Energy and other frackers.

Had the study told the truth from the beginning—i.e., that the study was performed by people essentially on Chesapeake Energy’s payroll—it probably would not have received much credit as a serious study. But, it lost all hope of being taken seriously when its authors evidently either tried to hide their financial ties to a fracking giant, or thought that the details and depth of their financial ties were something that readers of the study did not deserve to know as they decided how much to believe the study.

Either way, wrong. Dead wrong.

Especially galling are the excuses for the initial non-disclosure offered by Siegel’s employer, Syracuse University, and by another of the study’s authors.

A Syracuse University vice-president claimed with an apparently straight face that Siegel’s initial statement—i.e., that he and his co-authors had “no competing financial interest” in the study—“is in compliance with our internal procedures regarding disclosure of conflicts of interest.”4 Really? Syracuse knows that its professor’s study might be used to make important scientific decisions potentially affecting lives and property, and yet does not require that professor to disclose that he is being “privately” paid by the very company that stands most to benefit from the study? That’s either outright B.S., or slam-dunk proof that Syracuse needs new “internal disclosure procedures”.

One of Siegel’s co-authors forgave the initial non-disclosure by offering that “everybody would know we’re using Chesapeake’s database, so of course we’re working for Chesapeake.” 4 Two things here. One, use of a company’s database does not mean you are working for that company. I’m a lawyer that sues polluters, and in just about every case of mine, I’m using the polluter’s database to show the extent of the contamination it has caused. It would be idiotic to claim that my use of the database means that I am working for the polluter. Two, you just cannot reconcile the statement that “everybody would know we were working for Chesapeake” with the statement from Siegel and all the study’s co-authors in the initial publication that they had “no competing financial interest” in doing the study. Once you say the latter, the thing people are most likely to believe is that you are not working for Chesapeake.

All of this is just the latest proof that the fracking industry would rather we not know the truth. But, if fracking is as safe as they’d like us to believe, why not insist on scientists to do the studies who are not on a fracker’s payroll? Or, if they feel they have no choice but to have studies performed by fracking’s pet scientists, have the guts to call it what it is.

1 Siegel, Donald I., et al. “Methane Concentrations in Water Wells Unrelated to Proximity to Existing Oil and Gas Wells in Northeastern Pennsylvania.” Environmental science & technology 49.7 (Mar. 2015): 4106-4112.

2 Siegel, Donald I., et al. “Correction to Methane Concentrations in Water Wells Unrelated to Proximity to Existing Oil and Gas Wells in Northeastern Pennsylvania.” Environmental science & technology 49.9 (Apr. 2015): 5840-5840

3 Huffington Post Green – “Fracking Chemicals Found in Pennsylvania Water Wells, EPA Hamstrung by Industry Meddling” (May 5, 2015)

4 Syracuse.com – “Scientific Journal: SU Prof Paid by Chesapeake for Pro-Fracking Study” (May 8, 2015)

If You Don’t Look for Water Contamination, You Won’t Find It.

Posted in Contamination, Water

The LA Times and environmental advocacy group, Water Defense, recently combined to show what a sham so-called “environmental testing” can sometimes be, because it creates the illusion of protection for the people, when in truth there is very little, or maybe even none at all.

In its May 2, 2015 story, The LA Times (and author Julie Cart) documented how, for two decades now, food crops in the Central Valley of California have been irrigated (sprayed) daily with millions of gallons of recycled water that had been used to help big oil companies try to discover crude oil.   In a nutshell, waste water from oil fields is being used to grow food that winds up on our plates. 1

The oil companies and consortium of crop-growers think it’s a great deal.  The oil companies get paid (by the growers) to dispose of waste water that they otherwise would have had to pay a lot of money to get rid of.  The growers save lots of money; they get this “water” from the oil companies for about half of what they pay for water from other sources.

But this “water” is being sprayed on our food. We should care not so much about whether this practice is healthy for the bottom lines of oil companies and corporate growers, but whether it is healthy for the people who eat the food.

So the question is:  “Is this half-priced oil waste water safe to spray on the crops?”

When you dig deep, as The LA times did, you find that the answer to this question is a resounding, “We have no idea.”

The story starts off sounding good.  Both the growers and oil companies will tell you (as they told The LA times) that this water is treated and “tested” before it’s sprayed on the crops.  The growers will say that they test for pests and disease. Testing beyond that, they say, is up to the oil companies, For their part, the oil companies will say that they treat and test the water for whatever chemicals the government requires them to treat and test for.

But is anyone testing specifically for the chemicals used by the oil companies in oil production?  Because we obviously also want to know if those chemicals are getting onto, or, worse, into, our food when it is growing out in the Central Valley fields.

Sadly, it turns out that there is no testing for those chemicals.  Because the oil companies will not say what those chemicals are, no one tests to see if they are in the water sprayed on the crops.2

“You can’t find what you don’t look for”, The LA times quoted one scientist to say. 1

And so here we see the sham:  the oil companies and growers create the illusion of safety and responsibility by claiming to do all “required” testing…..even while they know that the “required” testing is grossly inadequate, because it does not test for the presence of dangerous oil field chemicals.

Until Water Defense’s work, the oil companies and growers had been able to say that there is “no proof” that oil field chemicals are in the water used to spray the crops.  But now there is proof.  Over the last two years, and throughout an 8-mile long canal over which oil field waste water travels before being sprayed on the crops, Water Defense actually tested some of this water. And it found compounds that are toxic to humans, including acetone and methylene chloride—which are used as industrial solvents and to soften thick crude oil—as well as oil.  Methylene chloride is a potential human carcinogen.

Not surprisingly, the growers and at least one oil company are crying foul over Water Defense’s work.  They say that Water Defense’s testing method was improper; the oil company says that it doesn’t use acetone and methylene chloride in its processes.  Good luck to them: Scott Smith, Water Defense’s chief scientist, has a resume that says he knows what he’s doing.  He’s consulted for EPA and other government agencies on more than 50 oil spills, and spent two years studying the oil waste water used in the Central Valley.

Hopefully, very soon, the sham will end.  Hopefully, testing of oil field waste water sprayed on crops will very soon include testing for dangerous oil field chemicals.  And then, hopefully, the people who eat the food sprayed with oil field chemicals can finally know what they have really been eating all these years, and decide whether they want to keep doing it.

1 LA Times – “Central Valley’s Growing Concern: Crops Raise With Oil Field Water” (May 2, 2015)

2 In California, a new law will require such disclosure soon; but, for the last 20 years, these chemicals have remained a secret. As a result, those who for 20 years have eaten Central Valley food sprayed with oil field waste water may have also been consuming undisclosed oil field chemicals, because no test revealed whether the chemicals were in the food.

Less Government Patience, More Government Action Needed on North Carolina Groundwater Contamination

Posted in Coal Ash, Contamination, Government, Groundwater

Why isn’t the State of North Carolina doing more to protect its own citizens against contaminated water?

For years, North Carolina has departed from the practice of most states, and allowed political heavyweight Duke Energy to store coal ash—the toxic residue of coal burning—in unlined pits near bodies of water and even residents. No liners required.1 No man-made barrier to prevent the dangerous ash from leaking into area groundwater supplies, even though many residents living near Duke Energy power plants and its coal ash pits depend on the groundwater for drinking, bathing, and preparing food.

Reportedly, Duke Energy now stores some 120 million tons of coal ash in the Duke Energy-friendly State.1 I suppose that’s what happens when you make it cheap for companies to store dangerous chemicals in your state…they wind up storing lots of dangerous chemicals in your state.

Recently, the North Carolina’s Department of Environment and Natural Resources (DENR) notified families living near a Duke Energy power plant that tests of the water in their groundwater wells reveals the presence of vanadium and hexavalent chromium—chemicals often associated with coal ash.1 Both are toxic to humans. They are not supposed to be in the water that people are drinking. DENR has therefore told these families—20 of them, in one mailing—to no longer use their water.1

So, not wishing to be poisoned by the water coming out of the ground, what do they do for water?

Duke Energy—while maintaining that “there is no proof” that the company is the source of the dangerous chemicals in their neighbors’ water—is supplying them bottled water to live on.1  So, instead of drinking and preparing food with water from a tap, these families can now fumble their way through large jugs of bottled water to accomplish those tasks. And if they wish to bathe in water that is not laced with toxic chemicals, they can presumably pour several jugs of Duke Energy’s bottled water into the bath tub, and try it that way.

Says a Duke Energy spokesperson about its bottled water for the families: “We want people to have peace of mind”.1 As if peace of mind came in a bottle. Even a large one.

While common sense says that bottled water is only a short term answer here, no one seems to be in a hurry to figure out where these folks will get clean water over the long term.  For its part, Duke Energy says that, if its own testing proves that it is indeed the source of the contamination, it will consider paying to connect these families to a local, safe water network.2  But Duke Energy says that its testing will not be done until 4 months from now—August 2015.2

For its part, the County Commission—which controls access to the local, safe water network—doesn’t appear all that interested in allowing its network to be used for the protection of families in danger from contaminated groundwater. Says one of the commissioners:  “our intention is not to build a water system simply to take care of 20 families.”2

What the hell is going on here?  Isn’t anybody in a rush to help these people who the state has bluntly told not to drink their water because it is so dangerous?

Look at how the powerful organizations all around these folks are letting them down:

  • Why did North Carolina allow Duke Energy to store its 120 million tons of coal ash in unlined pits, making the groundwater underneath them—and the home water supplies that depend directly on the groundwater—sitting ducks for coal ash contamination?  Even if Duke Energy is ultimately determined to not be the source of the contamination, allowing coal ash to sit for years in unlined pits is absolutely indefensible.
  • What took so long for the State to require Duke Energy to test the groundwater around its coal ash pits for contamination?  It took the State until 2014 to pass the required-testing law—years after it foolishly allowed Duke Energy to dump its coal ash in the unlined pits.  While the State should never have allowed such dumping in the first place, having nevertheless allowed it, at the very least the State should have mandated regular groundwater testing…to see if its foolish capitulation to a powerful company was endangering residents.
  • Why does Duke Energy get to test for itself whether it has contaminated the groundwater?  While I’m not suggesting that Duke Energy would rig the testing, the families affected by the contamination have the right to expect that the testing would be done by someone with an incentive to find a problem, if there is one. Trust is an important part of all of this.
  • Why is the testing taking so long? Duke Energy says that it will complete testing in 4 months. Even if it holds to that schedule, that’s too long. Perhaps if Duke Energy executives lived in the areas with the newly-discovered contaminated water—and their children had to drink and bathe in bottled water until the problem was solved—the company would act with more urgency.
  • And what’s with the water commission? If it’s not the commission’s “intention to build a water system” to protect families with contaminated groundwater coming into their homes, through no fault of their own, what is the commission’s intention? What are they in business for, anyway?

These are unfortunate questions, but they must be asked.  And the government of North Carolina—at all levels—must decide whose side it’s on.

1 The Guardian – “Duke Energy to Hand Out Bottled Water in North Carolina after Wells Polluted” (April 28, 2015)

2 Salisbury Post – “Duke Could Build Water Line if Plant Contaminated Water” (April 29, 2015)

DON’T “LEAVE IT UP TO THE EXPERTS” TO PROTECT THE PEOPLE AGAINST GROUNDWATER CONTAMINATION

Posted in Contamination, Government, Groundwater

Last year, the groundwater feeding a well located at the Portsmouth, New Hampshire Airport—which was one of several wells supplying water to the citizens of the City of Portsmouth—was found to be contaminated with dangerous levels of a chemical known as perfluorooctane sulfonic acid, or PFOS. The well is called the “Haven” well. The chemical detected at the Haven well is believed to have migrated to the groundwater supply after being sprayed for years at the Airport as part of a PFOS-containing firefighting foam. 1

The City had no choice but to shut down the Haven well, so that no one drinking the City’s water would be exposed to the PFOS.

Testing also showed that chemicals from the same family—perfluorooctanoic acid, or PFOA—had contaminated groundwater feeding two other city wells (“Smith” and “Harrison”), which were located to the south of Haven, although the levels detected at Smith and Harrison on that day were below the levels considered dangerous.

So, the Smith and Harrison wells have not been shut down, and presumably continue to supply water to the City’s residents.

New Hampshire’s Department of Environmental Services (DES) says it is on the job, that it is watching to see if greater levels of contamination are heading toward the Smith and Harrison wells, which would result in their shut down, too. Portsmouth’s mayor, for his part, is understandably concerned about the possibility of even greater impairment to his City’s water supply, but then suggests to his constituents that “we need to leave it to the experts to determine how concerned we need to be”. 1

Respectfully, Mr. Mayor, no you don’t need to do that, and in fact, you shouldn’t.

Especially when something so dear as the integrity of your water supply is concerned, you and your constituents deserve not only rapid action to protect them, but also timely and accurate information. In short, you deserve the right to be involved. You can’t just trust that the “experts” are going to get the job done all by themselves.

I have no reason to distrust DES here, but, after all, they are government bureaucrats, and my experience as an environmental lawyer over the last 15 years tells me that citizens must never trust that their government is as diligent in protecting them as it should be. For example, limited government budgets, changing government personal, competing government priorities and political pressures often slow or even halt investigations into groundwater contamination, and clean-up efforts. The people of Portsmouth and their Mayor do not want to wake up years from now to find that they have a badly compromised water supply because their government couldn’t give it the attention that it should have.

What’s the answer?  The Mayor is certainly correct when he says that he and his constituents are not environmental “experts”, so how is it that they should stick their noses in this problem, which is certainly scientifically complicated?

Simple: public pressure. The people of Portsmouth do not have to pretend to be environmental “experts”, but they can be experts in demanding protection of their water supply, and demanding a timely flow of information and action, so that they can monitor whether or not their government is doing its job. No need to be anything but a concerned citizen to be that kind of an expert.

We all understand that, when public and media attention stops, the priorities of those in government often change. They tend to move on to the next problem that is getting attention.  So, people of Portsmouth: don’t let that happen. Don’t let government’s attention stray from the job of protecting your water supply.

Specifically:

  1. Demand to know why the levels of PFOA’s detected in the Smith and Harrison wells are considered “safe” to drink. After all, PFOA’s are industrial chemicals. Why is any level safe?
  2. Demand that regular tests be taken of the Smith and Harrison wells, to see if they become contaminated beyond the levels already discovered. And insist that the test results be published immediately upon availability; the people should not have to make requests to get them.
  3. Demand to know who is responsible for this groundwater contamination.  They should be held accountable. They should have to pay the City to replace any well which has to be taken out of use due to the contamination. They should have to pay for any necessary investigation and clean-up of the groundwater.
  4. Ask the City: “What is our contingency plan?” in the event that two more wells have to be shut down in the future.
  5. Ask the City and DES to explain whether they believe they have the resources necessary to protect and inform the people. If they do not, consider asking the federal government to get involved.
  6. Insist that DES commit to deadlines, i.e., dates by which important tasks will be accomplished. Raise hell if any deadlines are blown, especially if there is not a good explanation for it.

These are just some ideas about how citizens whose water supply is threatened transform themselves into “experts” for their own protection. These citizens should not leave it to the government “experts”. They may be badly disappointed if they do.

1 Seacoast Online – “Pease, Portsmouth Wells at Risk of Contamination” (April 26, 2015)