Archive for September, 2009

Key FOIA case: Jefferson zoning hits Supreme Court

Wednesday, September 30, 2009

A battle over a new zoning ordinance  in Jefferson County over in West Virginia’s Eastern Panhandle has hit the state Supreme Court, in the form of a public records lawsuit that has implications for government transparency across the state.

maghan.jpgIn a nutshell: The Shepherdstown Observer newspaper wants to know who signed a petition to get the new ordinance on the ballot for a Nov. 9 special election. County Clerk Jennifer Maghan, right, refused to provide the requested documents, and Circuit Judge David H. Sanders upheld that decision.

Now, the Observer has asked the Supreme Court to overturn Sanders and order the documents released. The newspaper is represented by Charles Town lawyer Stephen G. Skinner and WVU law professor Pat McGinley.

I’ve posted a copy of their Supreme Court petition, along with other documents and a copy of the underlying circuit court decision here.

I’m far from an expert on the growing controversy over zoning in Jefferson County. Just last week, the state Supreme Court overturned some 2005 amendments to the county’s zoning ordinance. Those amendments had tightened zoning restrictions by decreasing the number of lots allowed in some areas from 1 lot for every 10 acres to 1 lot for every 15 acres. Local officials aren’t sure now where that leaves them as far as what ordinance they should be enforcing. Last October, the county commission adopted a different zoning ordinance. But some residents began a petition drive to put that ordinance to a public vote — a move that could overturn the county commission’s action.

But all of that aside, West Virginians who care about the public’s access to government records should take note that, among several issues raised, is one major interpretation by Judge Sanders that — if allowed to stand — would allow state and local agencies to withhold from release any documents submitted to them.

In his Aug. 21 order, Sanders opined:

The West Virginia Supreme Court has plainly interpreted the definition contained in the West Virginia Code, finding that a public record must not only relate to the public’s business, but also must have been a record that was created by the public body in the first instance.

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EPA lists PFOA among chemicals for new reviews

Tuesday, September 29, 2009

As part of a plan to reform the nation’s regulation of toxic chemicals, the Obama administration tonight announced it would conduct a new review of the health effects of  perfluorinated chemicals including PFOA, or C8.

lisaonbrown.jpgThe U.S. Environmental Protection Agency announced that PFCs are among six chemicals being considered for development of  “Existing Chemical Action Plans” as part of the administration’s  “comprehensive approach” to improve EPA’s policing of toxic chemicals.

There is tons of information from EPA about this program here, and some solid news coverage elsewhere from  Elizabeth Weise at USA Today and Jane Kay at Environmental Health News.

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PEER report: OSHA falling down on health inspections

Monday, September 28, 2009

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Federal workplace investigators are doing fewer health inspections despite more worker exposures to toxic and hazardous substances, according to a new analysis from the group Public Employees for Environmental Responsibility, or PEER.

While workplace exposures are linked to the premature deaths of 10 times more workers than all workplace accidents combined, OSHA now spends less than 5 percent of its limited resources on workplace health protection.

Occupational exposures are the eighth leading cause of death in this country, resulting in more than 40,000 premature deaths per year from cancer, neurological disease, cardiopulmonary disease, and other maladies. Yet OSHA figures show a slump in health sampling that began in 1991. According to the new PEER report:

  • The number of exposure measurements taken is few and getting fewer. For the most recent year (2007), OSHA took about 53,000 samples nationwide, whereas it was collecting nearly three times as many samples in 1988, at the end of the Reagan administration;
  • At its current rate of health inspections, it would take OSHA about 600 more years to make any chemical exposure measurements at half the nation’s industrial facilities that handle hazardous substances; and
  • Obama officials have taken no steps to reverse this trend, and continue to stress targets for the total number of inspections completed. This provides a powerful disincentive for inspectors to conduct toxic-substance sampling, which can take several days to complete, while an inspector can perform several construction safety inspections in a single day.

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Metro government: There’s no one size fits all

Monday, September 28, 2009

Bruce Katz is something of an expert on metro government. He is vice president and director of the Metropolitan Policy Program at the Brookings Institute, where much study of the nation’s brucekatz.jpgmetropolitan areas is done. During a recent chat, I asked him if he had any advice for a community, such as Kanawha County, where residents are considering whether to form a metro government. Katz (pictured) warns that reorganizing local government is difficult, but more people are finding it worth the trouble.

“Nothing comes easily in this area,” Katz said. “The fact remains that more and more places feel a need to change. They’re realizing that business as usual, with everyone going their own way, leads to paralysis.”Municipalities spend a lot of time competing against each other. “

While it’s true that merging governments does not increase the population or make the workforce any more skilled, a cohesive regional government is frequently associated with a better job market, he said.

“The literature is still divided on whether consolidated government leads to a better economy, but there is tantalizing evidence that it may be so. The intuition is that greater cohesion in government might be a economic value.

“It’s not as immediately sexy as an effort to land a particular manufacturer, but over time, it may be the most important thing. (more…)

Judicial Investigation Commission clears Halloran

Friday, September 25, 2009

WSAZ had filed a complaint with the Judicial Investigation Commission over Kanawha County Magistrate Tim Halloran (pictured) after he, according to the station, locked one of its halloran.JPGreporters out of the arraignment of former Charleston Police Officer Sean Phillip Patrick. (Patrick was accused of soliciting sex over the Internet from a girl he believed was between the ages of 15 and 17.)

Not long after the station lodged a formal complaint, several news vehicles parked outside of the courthouse were ticketed, reportedly at Halloran’s behest. WSAZ then filed another complaint against Halloran over the alleged retaliation. (Read the Gazette‘s coverage here and here.)

Today, the commission informed WSAZ that it had found insufficient evidence to support charges that Halloran violated the Code of Judicial Conduct in either case.

“After a careful review and full discussion of your complaint, the Judicial Investigation Commission was of the opinion that there was no probable cause to file a complaint against Magistrate Halloran, since it could find no substantiated evidence that would indicate any violation of the Code of Judicial Conduct.

 ”The Commission, therefore, dismissed your complaint and closed its file in this matter.”

– Fred L. Fox, II, Chairperson of the JIC

Mike Waterhouse, the station’s News Operations Manager, had this to say in response: “I am very disappointed in the decision of the Judicial Investigation Commission.”

As I posted earlier, judicial officers aren’t supposed to summarily close courtrooms during criminal proceedings without providing prior notice and justification. At least, not according to state law they’re not.

Secret meetings, Sept. 25, 2009

Friday, September 25, 2009

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There’s only one meeting in today’s issue of the State Register that doesn’t comply with the public notice requirements of West Virginia’s open meetings act.

It’s a teleconference meeting scheduled for Monday by the West Virginia Health Care Authority’s Health Information Network.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Chemical Board dust recommendation a PR ploy?

Friday, September 25, 2009

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Chemical Safety Board Chairman John Besland, left, and CSB Investigation Supervisor John Vorderbrueggen discuss the board’s final report on the February 2008 explosion that killed 14 workers at the Imperial Sugar refinery near Savannah, Ga. AP Photo.

During a public hearing last night in Georgia, the federal Chemical Safety Board tried to answer critics who complained the board had backed off its strong recommendation that the U.S. Occupational Safety and Health Administration write new rules to protect workers nationwide from the dangers of explosive dust.

In approving a final report on the disastrous explosion that killed 14 workers at and Imperial Sugar refinery, board members unanimously added this language as a recommendation to OSHA:

Proceed expeditiously, consistent with the Chemical Safety Board’s November 2006 recommendation and OSHA’s announced intention to conduct rulemaking, to promulgate a comprehensive dust standard to reduce or eliminate hazards from fire and explosion combustible powders and dust.

But the move did not satisfy the CSB’s critics. Evan Yeats of the United Food and Commercial Workers union told the Savannah Morning News that the board’s action was just a “public relations maneuver”:

It still could take years for OSHA to enact regulations using the current process, Yeats said. “We really can’t wait that long,” he said.

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Chemical board punts on dust explosions

Thursday, September 24, 2009

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In a Tuesday, June 24, 2008 file photo, a crane swinging a 7000 lb. ball continues the demolition of the 3 100-foot-tall silos at the Imperial Sugar Refinery in Port Wentworth, Ga., damaged in a 2008 explosion that killed 14 workers and injured 36 others.(AP Photo/Savannah Morning News, Steve Bisson, File)

The U.S. Chemical Safety Board is taking some serious heat again today, this time for its decision to not repeat its previous recommendations that the federal Occupational Safety and Health Administration write tough standards regulating combustible dust in America’s workplaces.

Several labor organizations blasted the CSB for not including that recommendation in its report, issued today, on the February 2008 explosion that killed 14 workers at the Imperial Sugar refinery near Savannah, Ga.

Jackie Nowell, occupational safety and health director for the United Food and Commercial Workers union, said:

The CSB’s leadership is a remnant of the Bush administration’s dangerous legacy for America’s workers. If the board continues to ignore its obligation to oversee the scope of our safety regulations, it will require new leadership to assure that its mission is accomplished.

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What we’re reading — water, teens, teachers, smoke

Thursday, September 24, 2009

 Welcome to our new Thursday feature, where we will share good reporting from elsewhere, either because it is particularly relevant to our readers, or just plain interesting. Here is a look at what we are reading this week:

  • Is a world water war inevitable?” asks  investigative reporter Andrew Schneider at Cold Truth. The answer appears to be yes. The U.S. military has recognized the 19365173.jpgpotential for decades.  Some West Virginians have been thinking about this issue, too. In 2004, Gov. Bob Wise signed the Water Resources Protection Act. In it, the public claimed the state’s water and required a survey of usage. The Legislature was moved to pass the law after lawmakers realized that distant states were more interested in West Virginia’s water than its coal, as Sen. Earl Ray Tomblin explains in this 2004 story. There’s tons of information about water use in West Virginia at this state Department of Environmental Protection site.
  • The $1.2 billion in federal stimulus money spent to help teenagers find jobs this summer was a whopping failure, reports the Associated Press. This and other updates on the stimulus are available from ProPublica. West Virginia, incidentally, is low on teens and children compared to other states. But the state’s percentage of idle teens ages 16 to 19 — those neither working nor going to school, not counting summer vacation — is higher than the national average. It was 10 percent in 2007, compared to 8 percent nationally, according to Kids Count West Virginia.
  • New York City schools actually send teachers to a form of detention, called the “rubber room,” where they clock in and get paid, but do nothing, the New Yorker reports. New York’s inability to get rid of truly incompetent teachers may interfere with the city collecting stimulus money offered to school systems that improve teacher accountability. West Virginia education officials comment on their efforts to qualify for this money in Gazette reporter Davin White’s recent story.
  • Of interest in West Virginia, with its high rate of heart disease, and especially in Kanawha County, where the local health board continues to be criticized for its anti-smoking ordinance, the Wall Street Journal reports on two studies that showed areas that banned smoking in restaurants saw heart attack rates drop quickly. We caught on to this story at the Pump Handle.

Another big test for U.S. Chemical Safety Board

Wednesday, September 23, 2009

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On Feb. 7, 2008, 14 workers were killed and 38 others injured in a massive explosion at Imperial Sugar’s refinery northwest of Savannah, Ga.

Tomorrow, the U.S. Chemical Safety Board is scheduled to release the findings of its investigation into the terrible explosion that killed 14 workers at a Georgia sugar refinery in February 2008.

It’s another big test for the CSB,  which has been under fire recently. Organized labor harshly criticized the board for backing off a strong recommendation on the need for OSHA and EPA to write new rules to prevent accidents involving highly reactive chemicals.  The board refused to support its own staff’s call for a safety bulletin and recommendations urging more controls on how workers handle the purging of gas lines.

When the Imperial Sugar report comes out, labor groups and safety advocates want to see the CSB repeat — in very tough terms — its previous call for OSHA to implement  a “comprehensive regulatory standard” aimed at preventing dust explosions across all industries nationwide.

Robyn Robbins, assistant director of occupational safety and health for the United Food and Commercial Workers union, told me this week:

We’d like to see the CSB issue clear, strong, substantive recommendations that give guidance to other facilities on how to prevent a disaster like this from ever happening again, and also reiterate their call for an OSHA standard on combustible dust.

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