Pollution Law Watch

What You Need To Know About Toxic Chemicals in Your Neighborhood – #2

Posted in Arsenic, Carbon Dioxide, Lead, PCBs, PCE, Toluene, Vinyl Chloride (VC)

By Shawn Collins and Edward Manzke of The Collins Law Firm, P.C.

Co-authored by Cassidy Carroll and Jacob Exline of The Collins Law Firm, P.C.

Over the last 15 years, many of our environmental contamination cases have started the same way. A family gets the startling news that their water is contaminated with some toxic chemical that they’ve never heard of. Sometimes the news comes in a letter in the mail from a government agency. Sometimes it’s a knock on the door from a government worker. The details are few, but the gist of what the family is told is that some company-perhaps the factory up the street-years ago dumped industrial waste out the back door. Over the years, the chemicals in that waste bled down through the soil, and are now in the groundwater that serves as the family’s supply of water for drinking, preparing food and bathing.

Mom or dad then tries to figure out what to do. They’re scared and angry all at the same time. Their thoughts are: “How could someone do this to us?” “Why weren’t we told before?”

And then there’s this one: “What is this chemical, and what can it do to my family?”

To help families in precisely this unfortunate situation, we’ve compiled short and easy-to-read summaries of the important facts about those chemicals most likely to be found contaminating drinking water. All you need to do is click on the chemical’s name below, and you will find a snapshot of useful information that can help you protect your family. While there are more toxic chemicals out there than we have provided, we are dedicated to updating and adding more toxic chemicals to our list to better help families. If you need any further information, please contact us.

Arsenic (Inorganic)
Arsenic (Organic)
Carbon Dioxide
Perchloroethylene (PCE)
Polychlorinated Biphenyl (PCBs)
Vinyl Chloride (VC)

What You Need To Know About Toxic Chemicals in Your Neighborhood – #1

Posted in Benzene, Contamination, Hydrogen Sulfide, Mercury, Methane, MTBE, Pollution, TCE, Uncategorized

By Shawn Collins and Edward Manzke of The Collins Law Firm, P.C.

Co-authored by Cassidy Carroll, Jacob Exline and Gregory Zimmer of The Collins Law Firm, P.C.

Over the last 15 years, many of our environmental contamination cases have started the same way. A family gets the startling news that their water is contaminated with some toxic chemical that they’ve never heard of. Sometimes the news comes in a letter in the mail from a government agency. Sometimes it’s a knock on the door from a government worker. The details are few, but the gist of what the family is told is that some company-perhaps the factory up the street-years ago dumped industrial waste out the back door. Over the years, the chemicals in that waste bled down through the soil, and are now in the groundwater that serves as the family’s supply of water for drinking, preparing food and bathing.

Mom or dad then tries to figure out what to do. They’re scared and angry all at the same time. Their thoughts are: “How could someone do this to us?” “Why weren’t we told before?”

And then there’s this one: “What is this chemical, and what can it do to my family?”

To help families in precisely this unfortunate situation, we’ve compiled short and easy-to-read summaries of the important facts about those chemicals most likely to be found contaminating drinking water. All you need to do is click on the chemical’s name below, and you will find a snapshot of useful information that can help you protect your family. While there are more toxic chemicals out there than we have provided, we are dedicated to updating and adding more toxic chemicals to our list to better help families. If you need any further information, please contact us.

Hydrogen Sulfide
Methyl Teriary-Butyl Ether (MTBE)
Trichloroethylene (TCE)

Is US Environmental Decision-Making Morally Bankrupt?

Posted in Court Ruling, Government, Pollution

Co-Authored by Norman B. Berger

A comparison of Pope Francis’ recent encyclical on the environment, Laudato Si’, with our Supreme Court’s recent decision on power plant emissions raises troubling questions regarding the moral core of our environmental decision-making.

The Pope wrote passionately about how it is the poor who bear the brunt of power plants recklessly spewing toxic chemicals into the air:1

  • “Exposure to atmospheric pollutants produces a broad spectrum of health hazards, especially for the poor, and causes millions of premature deaths.  People take sick, for example, from breathing high levels of smoke from fuels used in cooking or heating.”2
  • There is an “intimate relationship between the poor and the fragility of the planet. . .”3

And he spoke of how powerful corporate interests claim for themselves, and then abuse, the earth’s natural resources, all the while denying the basic humanity of most of the earth’s people:

  • “When nature is viewed solely as a source of profit and gain, this has serious consequences for society.  This vision of ‘might is right’ has engendered immense inequality, injustice and acts of violence against the majority of humanity, since resources end up in the hands of the first comer or the most powerful: the winner takes all.”4
  • As a result, “[t]he earth, our home, is beginning to look more and more like an immense pile of filth.”5
  • This behavior refuses to recognize “the immense dignity of each person, ‘who is not just something, but someone. . .”6

With words as beautiful as they are chilling, the Pope exhorted us to make environmental decisions by valuing foremost the lives and health—and fundamental human dignity—of the poor, who are paying the price by the millions for environmental decision-making that considers only, or mostly, the bottom lines of those companies who are doing the polluting.

But then along comes the majority of justices of the US Supreme Court in the recent case of Michigan vs. EPA, ruling as if they were trapped in another century governed by Charles Dickens-style industrialists.  I blogged about this decision in Life-Saving Regulation of Toxic Power Plant Emissions Declared Invalid By US Supreme Court.

In that decision, the majority invalidated an 18-years-in-the-making EPA regulation which would have:7

  • Sharply reduced the toxic emissions from coal burning power plants;
  • Saved 11,000 lives every year;
  • Reduced illness from power plant emissions by the tens of thousands every year; and
  • Producing benefits greater than costs by up to $80 million every year.

(And this is to say nothing of the severe climate change caused by power plant and other fossil fuel emissions which, alone, are threatening the lives and security of millions around the world.)7

The lives and health spared by EPA’s regulation would have been mostly those of the poor—including poor children—who live in precisely the kind of financially disadvantaged neighborhoods where homes and yards are regularly blanketed with toxic soot.

In its reasoning, the majority barely even noticed the fact that EPA’s regulation would have saved lives and health, or that, in the 10+ years it worked to find the most cost-effective regulation, EPA considered numerous times the cost of the power plants’ compliance with the regulation.  Instead, the majority fastened its gaze only on the fact that, in the earliest stage of the process, EPA did not consider the cost.  In other words, according to the majority, EPA’s consideration of compliance costs at stages 2-10 of its process was irrelevant; but its failure to consider cost of compliance at stage 1—when there was not even a regulation on the table whose costs could be calculated—was fatal.

What especially raises the troubling moral questions in the majority’s opinion is the term it used (and EPA used, it should be noted) to refer to the lives and health that would have been spared by the regulation:

“Ancillary benefits”

Have we really arrived as a society at the place where the spokespeople for our most powerful institutions now casually refer to not killing and injuring our own citizens as merely “ancillary” to corporate balance sheets?

What do we say to the mother raising children in a poor community where the air in her children’s bedrooms, schools and playgrounds is heavy with chemicals from the power plant’s smokestack across town?

What do we tell her when she asks: Why are the most powerful in the country referring to the lives of my children as “ancillary?  Why, after EPA reported to Congress in 1997 that power plant emissions would harm my children for life, did it take 18 years to get the regulation through the court system?  Where is the urgency that honors the lives and health of the people in my family and of my neighbors?

The truthful answers to these questions are ugly.  But the beginning of our finding better, moral answers may be found, once again, in the writing of Pope Francis, who said:

“…we have to realize that a true ecological approach always becomes a social approach; it must integrate questions of justice in debates on the environment, so as to hear both the cry of the earth, and the cry of the poor.”8

I am not suggesting that our Supreme Court begin taking direction from a religious leader.  Our history and Constitution tell us that we don’t do that here. But just because Pope Francis is a religious leader does not mean that he is wrong, or that his voice cannot be the catalyst for showing us that we have fallen so far short of who we really should be.

And it should not take religious guidance for us to understand that our willingness to hear the “cry of the earth and the cry of the poor” occupies much higher moral ground than our insistence on hearing the cries of those who claim our resources as their own, profit from their use, and leave our planet and people badly damaged in their wake.

1 Pope Francis – “Laudato Si'” – Papal Encyclical (June 18, 2015)

2 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 20 (June 18, 2015)

3 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 16 (June 18, 2015)

4 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 82 (June 18, 2015)

5 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 21 (June 18, 2015)

6 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 65 (June 18, 2015)

7 Pollution Law Watch – “Life-Saving Regulation of Toxic Power Plant Emissions Declared Invalid By US Supreme Court” (July 8, 2015)

8 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 49 (June 18, 2015)


Posted in Court Ruling, Government, Mercury, Pollution

Co-Authored by Norman B. Berger

If a new environmental regulation requiring power plants to reduce toxic emissions would prevent 11,000 premature deaths every year; prevent many thousands more illnesses every year; and produce benefits that outweigh the costs by as much as $80 billion every year, would you say that’s enough reason to have the regulation?

Of course you would.  But a majority of the US Supreme Court recently said that all of that wasn’t enough. Or, more precisely, that it didn’t matter. And so it declared invalid the life-saving regulation. The Court’s decision is just the latest sad example of how this country’s institutions will protect the “right” of powerful business interests to pollute our air and water, even though their pollution is badly injuring—and even shortening the lives of—American citizens. (And this is to say nothing about the power plants’ role in greenhouse gas emissions which are choking our planet and threatening to permanently displace millions this century).

We worry a lot about the rights of polluters to not have to bear the cost of polluting less, but not nearly enough about the rights of our citizens to not have bear the devastating costs of the pollution.

On June 29, the Supreme Court issued its decision in the case of Michigan v. Environmental Protection Agency.1

In that case, the record showed that, since the late 1990’s, the US EPA has studied the emissions—predominantly mercury—from coal-burning power plants, and ways to significantly reduce them. Beginning in 1997, EPA’s Mercury Report to Congress found coal-burning power plants to be the “largest [non-natural] source of mercury emissions” and found mercury to be quite dangerous to humans.2  For example, EPA determined that children of mothers exposed to high doses of mercury during pregnancy “‘have exhibited a variety of developmental neurological abnormalities,’ including delayed walking and talking, altered muscles, and cerebral palsy.”3

EPA also considered—at multiple times during the last 10 years, and in multiple ways—the cost to the power plants of requiring them to emit significantly less mercury to the environment.4

Then, at the end of this 10-year study period:

EPA conducted a formal cost-benefit study which found that the quantifiable benefits of its regulation would exceed the costs up to nine times over—by as much as $80 billion each year. Those benefits include as many as 11,000 fewer premature deaths annually, along with a far greater number of avoided illnesses.5

But none of it mattered. The Supreme Court, in a 5-4 decision, ruled that this was all irrelevant because EPA had not considered, at the very first stage of the process, how much it would cost for the power plants to comply with the regulation.  Writing for the majority, Justice Scalia said that EPA “must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is “appropriate and necessary”.6 (emphasis added) Therefore, any later consideration by EPA of compliance cost—even if it considered such cost many, many times over a decade, which EPA did—and any determination that the lives and health of many citizens would be spared by the regulation, simply do not matter.  According to Justice Scalia and the majority, EPA did not even have the power to be looking into those things, since it did not take compliance cost into consideration on day one.

The Supreme Court majority is wrong, and plainly so. The legal requirement that EPA first find regulation to be “appropriate and necessary” before it begins the regulatory process does not say that “compliance costs” must be part of the “appropriate and necessary” determination.  It would have been easy enough for Congress to have said that, but it didn’t. EPA’s conclusion at the start of the 10+ year-long regulatory process—i.e., that the regulation of mercury emissions will save lives and that it is technologically feasible to save them—is more than enough to empower EPA to take the next step. And that step is what took 10 years: figuring out what the regulatory options are for saving lives, and what their various costs and benefits are.  If, during that portion of its work, EPA determines that the costs of the regulation outweigh its benefits, then there will be no regulation.

EPA’s finding that regulation of coal-burning power plants is “appropriate and necessary” does not mean that EPA has already settled on a specific regulation, and is telling the power plants that they just have to live with it. The “appropriate and necessary” finding is the beginning of the process, not the end.  It simply means that EPA can get started on the laborious process of figuring out what regulation will be most cost-effective, which is what happened here.

The majority is also wrong because it forces EPA to do the impossible, i.e., to determine the cost of regulating before it even knows what the specific regulation will be. Will the final regulation reduce emissions by 20%, or 90%? Will the final regulation reduce emissions for all power plants, just the biggest, or just the worst polluters? How can EPA “consider the cost” of regulating mercury emissions before it even knows how the final regulation will address these questions? To say, as the Scalia majority does, that EPA has no power to consider specific regulations without first identifying their compliance cost—while the majority well knows that EPA cannot in any meaningful way identify compliance cost without know what the specific regulation will be—puts EPA in a Catch-22 that renders it impotent.

And maybe that is precisely what the pro-business majority intended.

But the worst and saddest part is what those 5 justices were really doing when they said that EPA’s consideration of compliance cost dozens of times over those 10+ years is not enough, since EPA didn’t consider them on day one. The majority was declaring that the fact—and it is a fact—that mercury and other toxic emissions from power plants are killing and injuring tens of thousands of Americans every year is not a significant enough “cost” to justify trying to stop this horrible danger.

To these justices, it seems, the business cost to power plants of regulating their lethal polluting trumps the cost to all of those whose lives are jeopardized because there is no regulation.

1 US Supreme Court – Michigan v. Environmental Protection Agency (June 29, 2015)

2 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 5 (June 29, 2015)

3 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 5-6 (June 29, 2015)

4 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 1-7 (June 29, 2015)

5 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 2 (June 29, 2015)

6 US Supreme Court – Michigan v. Environmental Protection Agency – Opinion of the Court at 14 – Delivered by Justice Scalia (June 29, 2015)

Environmental Discrimination in Richmond, California

Posted in Arsenic, Chromium, 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, Lead, 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, EPCRA, Government, Petroleum Contamination (BTEX), Toluene, Vinyl Chloride (VC)

“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 Arsenic, 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 Arsenic, 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, CWA, 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)