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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.

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)

Find Out ASAP If There is TCE Vapor Intrusion in Homes in Elmira, New York

Posted in Contamination, Government, TCE, Vapor Intrusion

Last week, New York’s Department of Environmental Conservation (DEC) announced that chemical contamination discovered at the former Triple Cities Metal Finishing plant in Elmira, New York “presents a significant threat to public health and/or the environment”.  DEC has determined that industrial chemicals—including TCE—once used at the plant in its electroplating operation have contaminated the property’s “soil, groundwater and soil vapor at levels exceeding applicable standards.”1

Cutting through the bureaucrat-speak, this means that nasty chemicals once used at the plant may have spread to the nearby neighborhood, and may now be underneath, or even inside, the homes there.

While DEC says it wants to find out if, in fact, that has happened—and that is a good and necessary step for DEC to take—DEC must take that step urgently.

Now.

In my experience, it can take government years or even decades to find out if dangerous chemicals have spread from an industrial site into a neighborhood.  There are lots of reasons why it takes so long—complicated science, lack of money, political resistance to learning the truth, etc.—but none of the reasons is a good one.

Here, TCE—which is but one of the chemicals already found in soil, groundwater and soil vapor at the Elmira plant—is a carcinogen.  It is associated with cancer of the kidney, liver, cervix and lymphatic system.  Elmira families may have TCE on their properties or in the air they breathe in their homes.  These families should not have to wait years to find out if this has happened or, hopefully, to get the peace of mind that comes from finding out that the chemicals did not reach their neighborhood after all.

I understand that the Elmira area is served by a municipal water system, which is very good news.  It means that any of the TCE or other chemicals that might have seeped into the groundwater over the years is not entering homes through faucets and shower heads.

But that isn’t the whole story.  Because TCE (among other chemicals) “volatilizes”—meaning TCE turns into vapor or gas—it can migrate upward from contaminated groundwater, and slip quietly into the breathing space of homes sitting above the groundwater.  This is a simple graphic depiction of this process called “vapor intrusion”:

house-vapor-hh-001

Graphic Depiction by Treehugger2

And because TCE is colorless and odorless, people in those homes can be breathing TCE vapor without knowing it.

Of course, I am not saying that TCE or other chemicals are in the homes in Elmira, New York.  I dearly hope that they are not.  But the DEC’s conclusion that the TCE is already contaminating soil, groundwater and soil vapor on nearby plant property; that DEC does not yet know how far the contamination may have spread; and that all of this poses a “significant threat to public health and/or the environment”, means that there is not time to waste to find out if the people are in danger.

Testing to see if TCE or other volatile chemicals are in homes near the plant can begin this week, if DEC wants it to.  There is no good reason to wait, let alone to wait years, as government investigations often do.

1 Star Gazette – “DEC: Former Plant in Elmira a Threat to Public Health” (April 22, 2015)

2 TreeHugger – “Ask TreeHugger: What is Vapor Intrusion?” (March 15, 2007)

Whom To Trust In Troubled Water? Not the Government: North Carolina is Failing to Protect Contamination Victims

Posted in Contamination, Government, Groundwater, Pollution

Unfortunately, Deborah and Ralph Graham of Dukeville, North Carolina can now be added to the large and growing list of American families who are learning the hard way that they cannot trust their government to protect them against chemical contamination, even though the Grahams pay their government (in taxes) to do precisely that.

The Charlotte Observer describes how the Grahams have recently learned from the state’s Department of Environment and Natural Resources (DENR) that the water they use for bathing, cooking and drinking is contaminated with what North Carolina has concluded are dangerous levels of chemicals, and that the Grahams should no longer use the water.

But then the Grahams started to experience the sadly familiar behavior that will prove that their government is not protecting them, and in fact is behaving more like an advocate for polluters.  For example:

  1. The Grahams learn that DENR had the test results on the Grahams’ water—showing that the water was threatening the family’s health—for 52 days before bothering to tell the Grahams about it.  (And how long did DENR wait to even conduct the test of the Grahams’ water after it learned the information that caused the agency to want to do the testing in the first place?)
  2. DENR then tries to tell the Grahams that they shouldn’t worry about the contamination, because, even though the state defines the contamination as dangerous, the federal government does not.  In other words, DENR says to the Grahams:  “Even though we’ve told you that your water is so contaminated that you should stop using it, it really isn’t that dangerous after all.”  At best, this only confuses families that need clarity.  At worst, this is the state of North Carolina abandoning its own definition of what is dangerous to human health.

Shame on DENR.  It’s supposed to be the Grahams’ (and their neighbors’) staunchest protector, and provider of clear and useful information.  Instead, DENR is behaving like a thoughtless bureaucrat—i.e., allowing the Grahams to drink for more than 6 weeks water that DENR knows is dangerous—and an apologist for polluters—i.e., telling the Grahams that the state’s own standards of what are dangerous levels of chemicals are not to be taken seriously.

And all of this comes on the heels of what The Charlotte Observer terms as DENR’s “history of being disturbingly cozy” with Duke Energy—a noted environmental threat whose coal ash has been spewed all over North Carolina.

DENR is supposed to be on the Grahams’ side, not Duke’s.

A few years ago, I wrote an article called, “Stand Up and Fight”. It’s about how families like the Grahams can band together with their neighbors to shame their government into doing its job to protect them.  There is great power in the collective action and voices of families like the Grahams, when they learn that their neighborhood has been contaminated, that their government is not on their side, and that it is up to them to see that the right thing is done.

Here’s wishing that the Grahams and their neighbors will do just that…and that, one day soon, DENR will remember who it’s really supposed to be working for.

NOTHING “ARMY STRONG” ABOUT THIS: U.S. ARMY CONTAMINATES ENTIRE NEIGHBORHOOD, FAILS TO PROTECT ENDANGERED FAMILIES.

Posted in Contamination, Government, Groundwater, RCRA, TCE, Vapor Intrusion

The U.S. Army is showing a disrespect that borders on hostility toward its neighbors who live near the Army’s Fort Gillem base just outside of Atlanta, Georgia. The Army’s decades-long failure to protect these families from life-threatening contamination—that the Army itself had caused—has forced the U.S. EPA last week to literally order the Army to finally do something to protect them.

Here’s the story:

For much of the time between 1940 and 2011, Army personnel indiscriminately dumped a staggering array of highly toxic chemicals—including the notorious carcinogen, TCE—at the Fort Gillem base. As a result, today, the legacy of the base is eight highly-contaminated areas, one of which is a 300 acre landfill that, all by itself, has at least 356 known chemical dump locations.

Because the Army recklessly left these chemicals in the ground, the chemicals predictably bled down through the soil, infiltrated the underlying groundwater (forming at least three large “plumes” of contamination) and then oozed into nearby residential neighborhoods.  Neighborhoods full of families and kids.  Worse, many of these chemicals, such as TCE, are “volatile organic compounds” (VOCs). It has been known for years that VOCs vaporize, and then drift back upward from the groundwater in the form of gas, migrating through the soil, and surrounding and even penetrating overlying homes.  That means the nasty volatile chemicals could be in the air that people are breathing—both in their home and in their yard.

Since at least 1992, the Army has known that the groundwater underneath these families was highly contaminated with Fort Gillem’s chemicals, and that the people could be in danger from toxic gas.  For example, the Army found toxic vapors in the Fort Gillem soil as early as 1996, and even found them in the surrounding neighborhoods in 2003.  These results should have compelled the Army to immediately begin testing for toxic vapors inside of and surrounding the homes.

But that didn’t happen.

No, the Army didn’t start this vapor testing until the summer of 2014—more than 20 years after it first knew there was a problem.  And, when it finally did the testing, the Army found that most of the homes tested had toxic vapors inside them.

The EPA’s written September 24, 2014 Order RCRA-04-2014-4251 documents just how thoroughly the Army’s contamination has inundated the surrounding neighborhoods, threatening the lives of the people who live there.  According to the EPA:

(1) The chemicals dumped at Fort Gillem “have been identified in the soils, sediments, surface water, groundwater, soil vapor, indoor air and ambient [ie, outside] air in and around the residential properties near” Fort Gillem.  (see Order, p. 10, paragraph 13) (my emphasis).

(2) Those in danger from the contamination include “adults and children, with sensitive populations in women of child-bearing age and pregnant women [. . .] both young children and the elderly may be included in a sensitive population group.”  (see Order, p. 10, paragraph 13 d).

But, for as scary as this sounds, it was nothing new to the Army. For years, the Army has known how badly it had contaminated the neighborhoods near Fort Gillem, and that the people might be breathing the toxic vapors.  But it did nothing about it.  And so the EPA had to step in with its order, very specifically telling the Army what it had to do in the neighborhoods.  For example:

(1) “evaluate[] whether indoor and/or ambient air in residential and other properties surrounding the former Fort Gillem contains hazardous constituents”;

(2) “document[] the levels of such constituents”;

(3) “determine[] the level of risk posed by those constituents to the residents, owners, employees, students and invitees of the properties surrounding the firmer Fort Gillem”; and

(4) “mitigate[] any unacceptable risk to those persons.” (see Order, p. 13, paragraph 27).

In simple terms, EPA told the Army: “find out if the people are in danger, and protect them”.

That this had to be said to the Army, decades after it dumped the very chemicals that the Army knew people were likely breathing in the neighborhood, is a disgrace. The Army knew it had put its neighbors’ lives in danger, but did not have the decency on its own to try to protect them.

Don’t bet any important money on the Army obeying the EPA’s order.

Supreme Court Victory for Human Health and the Environment

Posted in Citizen Suit, Contamination, Court Ruling, Fracking, Government, Groundwater, PCE, Pollution, RCRA, Uncategorized, Vapor Intrusion

In a recent decision described by EPA Administrator Gina McCarthy as “a resounding victory for public health and a key component of EPA’s efforts to make sure all Americans have clean air to breathe,” the Supreme Court backed federally imposed limits on smoke stack emissions that cross state lines.  The ruling, issued on April 29th, upholds rules adopted by EPA in 2011 that force polluting power plants to limit the emission of pollutants that ultimately contaminate air in downwind states and cause smog and acid rain.  The Supreme Court held that under the Federal Clean Air Act, the EPA can regulate states that do not adequately control downwind pollution.  According to the EPA, the reduction in air pollution will result in hundreds of billions of dollars in health care savings and prevent more than 30,000 premature deaths.

As acknowledged by the EPA and public health agencies, environmental exposures to contaminated air and water are significant risks factors in human illnesses, including cancer.  Unfortunately, decades of improper chemical disposal has left a legacy of thousands of contaminated waste sites across the country.  As a result of this legacy — today — homeowners from coast to coast are learning that their homes have been contaminated with cancer causing chemicals like TCE, PCE, Benzene and Vinyl Chloride. 

Hopefully, the Supreme Court’s recent ruling will spare future generations from the very real consequences of environmental pollution.