Archive for the ‘Legal’ Category

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Long story of Monsanto and dioxin continues

Monday, January 9, 2012


Five of the plaintiffs in the 1984 dioxin lawsuit against Monsanto Co. in Nitro stand outside the courtroom. Left to right: John Hein, James Ray Boggess, June Martin, Gene Thomas and Charles Farley. Each man sued Monsanto for $4 million each, alleging that exposure to chemicals at the Nitro plant threatened their lives.  After an 11-month trial, jurors awarded $200,000 to Hein, but ruled against the other workers. Gazette file photo.

Over the last few weeks, the Gazette’s Kate White and I have been covering the run-up to the big class-action lawsuit trial against Monsanto Co. over alleged contamination of the town of Nitro by the company’s former chemical-making operations there.

Jury selection began last week, after another mediation effort failed. Once a jury is picked and trial begins, jurors will be asked to award thousands of current and former residents medical monitoring to allow early detection of diseases potentially linked to dioxin exposure. Several years ago, we published a lengthy Sunday story that explains in much more detail the allegations in the lawsuit (subscription required) about how Monsanto polluted the town.

As the photo above and Sunday’s story explained, this is certainly not the first major legal action to focus on Monsanto and dioxin:

An early sign of dioxin’s effects came in March 1949. A massive explosion rocked the Nitro plant when a pressure valve blew on a 2,4,5-T cooking container. More than 220 workers got sick.

Years later, more than 170 workers sued Monsanto, alleging dioxin exposure at the plant had made them ill. Cases involving seven of the workers went to trial in federal court in 1984.

After an 11-month trial, a jury awarded one of the workers, John Hein, $200,000 for bladder cancer he contracted because of exposure at the plant to another chemical, para-aminobiphynol, or PAB.

Jurors found that dioxin had made the other workers sick and that Monsanto had not acted diligently in seeking to determine the possible impact of exposure on worker health.

(more…)

Posted in Chemical industry, Courts, Environment, Legal, Public safety, Worker safety | No Comments »

The files on Benjamin Hill’s death

Tuesday, June 28, 2011

Late last week I obtained a large file of documents concerning the death of Benjamin Hill, whose mysterious death at the Industrial Home for Youth prompted a West Virginia Supreme Court inquiry into the state Division of Juvenile Services.

In my story today, I write about how the documents suggest that Hill may have died of an overdose of an antidepressant he was prescribed.

Below is a look at the documents mentioned in the story. Click on the notes in the left-hand column to read about the notations. You can scroll to the bottom and click on a much larger (and therefore legible) pdf file of the documents.

Posted in Courts, Harrison County, Legal, Prisons | No Comments »

W.Va. northern flying squirrel back on protected list

Thursday, June 16, 2011

Just in time for West Virginia Day celebrations on Monday, the West Virginia northern flying squirrel is going back on the federal endangered species list.

The U.S. Fish and Wildlife Service is set to announce the action in a notice to be published in tomorrow’s Federal Register. Here’s a copy of the notice.

Agency officials took the action in response to a federal judge’s ruling in March that they had improperly removed the squirrel from the protected list.

Bethany Cotton, a lawyer with the Center for Biological Diversity, one of the organizations that sued over the listing, said:

Threatened by logging, development and climate change, the West Virginia flying squirrel needs the protections of the Endangered Species Act to survive and recover. From now on, the Fish and Wildlife Service must follow its own science-based recovery plans before taking protections away from endangered species.

(more…)

Posted in Environment, Legal | No Comments »

Marcellus update: Lawsuits against Chesapeake Energy challenge dumping of fracking waste

Thursday, April 14, 2011

We broke a story in this morning’s Gazette about three lawsuits in northern West Virginia that challenge a central practice of the region’s growing natural gas drilling industry: Dumping fracking waste on people’s property and then leaving potentially toxic pits behind when the drilling is done.

As we reported:

Larry and Jana Rine allege that Chesapeake unlawfully disposed of drilling wastes in the pit, then buried it and planned to leave it on a 210-acre property the Rines use as a part-time home and hunting camp at Silver Hill, east of New Martinsville.

Now, they allege, the company is using repair of a slip on its well pad as an excuse to haul away the wastes and potentially cover up what was really dumped into the pit.

Preliminary testing found the soil contained diesel fuel, benzene and a variety of other contaminants, court records show.

In a suit filed late last year, the Rines argued that it’s not “reasonably necessary” — the legal test for activities allowed by state natural gas laws — for Chesapeake to leave a buried waste dump in order to extract the gas it owns beneath the Rine property.

“These cases are just common sense and common law,” said Brian Glasser, a Charleston lawyer who represents the Rines and has filed two other, similar cases against Chesapeake. “You can’t bury a bunch of waste in somebody’s yard. It’s that simple.”

If successful, the lawsuits could force major changes in the way companies handle the huge amounts of wastes generated as they rush to drill for natural gas in the lucrative Marcellus Shale formation.

Here’s a copy of the legal brief that prompted U.S. District Judge Frederick P. Stamp to issue a temporary restraining order against Chesapeake:

Posted in Legal, Oil and gas | 3 Comments »

M. Blane Michael, 1943-2011

Monday, March 28, 2011

Word came on Friday that Judge M. Blane Michael, one of two judges from West Virginia who sits on the U.S. Court of Appeals for the 4th Circuit, had passed away. Judge Michael served on the 4th Circuit for more than 17 years.

Judge Michael was only the second occupant of seat nine on the court, which was created in 1978 and has always been held by a judge from West Virginia, with its duty station located in Charleston.

Others, including his old friend, Sen. Jay Rockefeller (D-W.Va.), have recalled his prodigious gifts as a lawyer and jurist, as well as his affability and warmth.

“Unvarnished in his honesty, uncanny in his humor and unequaled in his humility, Blane was a formidable presence on the federal bench, with a moral and intellectual compass set hard for justice,” Rockefeller said in a statement. “He was a brilliant judge who never took for granted the power and the responsibility of deciding the cases that impacted people’s lives or righted serious wrongs.”

I didn’t know Judge Michael well, but on those rare occasions when our paths crossed, I found him charming and unassuming, with a lively intellect that stretched far beyond the law.

But even as we recall what a personable and admirable man Judge Michael was, we should not overlook his stature as a judge, which is hard to overstate. It’s worth remembering that in 2005, when asked by the Bush administration, West Virginia Sen. Robert C. Byrd recommended Judge Michael to fill the vacancy on the U.S. Supreme Court after Chief Justice William Rehnquist died.

Through his opinions, he was a powerful voice, not just for West Virginia, but for the entire nation, as he served with distinction on one of the most carefully watched and influential courts in the country.

Over the years, my colleague Ken Ward has noted Judge Michael’s impact several times over on Coal Tattoo. Below are two samples of Michael’s clear and forceful writing, which do not even begin to do justice to the judge’s legacy.

Dissenting from the 4th Circuit’s decision not to rehear a case involving a mountaintop removal permit:

I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether the U.S. Army Corps of Engineers erred in approving permits that allow surface mining overburden to be placed into headwater streams, eliminating the streams and adjacent valleys. I recognize that it is not our role to second-guess the expertise of a regulatory agency, but we must nevertheless ensure that the Corps fulfills its duties under controlling law. In this case, the Corps has simply failed to do its job.

In the context of mountaintop removal mining, the Corps’ § 404(b) dredge and fill regulations require the agency to assess the “nature and degree of effect” that discharges of mining overburden into headwater streams will have “on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. § 230.11(e) (2006). At a minimum, the regulations require some assessment of both stream structure and stream function. The Corps’ failure to assess stream function in this case and its later claim that an assessment of stream structure provides an adequate substitute cannot amount to a permissible construction of the regulations.

The ecological impact of filling headwater streams with mining overburden is both profound and irreversible. As the Corps itself acknowledges, “[i]t is well understood that the health of entire watersheds [is] dependent on functions provided by headwater streams.” J.A. 1823 (Black Castle combined decision document). The Corps goes on to explain that headwater streams provide a number of “important functions” including maintenance of natural discharge regimes, regulation of sediment export, retention of nutrients, processing of terrestrial organic matter, and exportation of water nutrients and organic matter to downstream areas. Id. The Corps does not credibly claim to have measured these functions for the permits at issue in this case.

Because the long-term environmental impacts of destroying headwater streams are not yet fully understood, permitting the filling of these streams without requiring the Corps to comply with its clear duty to assess functional impacts fatally undercuts the purpose of the regulations. The Corps’ Clean Water Act regulations require the agency to certify that any discharge of fill material will not cause or contribute to “significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c) (2006). Without the information provided by a functional assessment, the Corps cannot make that determination. No permit should issue until the Corps fulfills each distinct obligation under the controlling regulations. And this court should not defer to the Corps until the agency has done its job.

And another powerful dissent, discussed by Ken here, in another mountaintop removal case:

Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.

Here is Judge Michael delivering the 2009 James Madison Lecture at his alma mater, New York University’s School of Law.


Posted in Charleston, Courts, Legal | No Comments »

Court overturns removal of West Virginia northern flying squirrel from federal endangered species list

Monday, March 28, 2011

Image from U.S. Fish and Wildlife Service website.

A federal judge has overturned an Interior Department decision that removed the West Virginia northern flying squirrel from the endangered species list.

U.S. District Judge Emmet G. Sullivan issued this 30-page opinion on Friday, ruling that Interior’s Fish and Wildlife Service had improperly removed the animal from the protected list without first changing its recovery plan and following required public input procedures for doing so.

We’ll have more on this in tomorrow’s Gazette …

Posted in Environment, Legal | No Comments »

About Judge Goodwin’s chemical plant expert …

Thursday, March 10, 2011

UPDATED: Here’s a link to a feature photo from Friday’s Gazette showing the pro-Bayer driving procession yesterday evening.

We broke a story in today’s Gazette detailing the long-standing views of Sam Mannan — the court-appointed expert in the Bayer MIC case — against government regulations to mandate chemical plants more closely consider “inherently safer technologies.”

As we explained:

A chemical engineer appointed to advise U.S. District Judge Joseph R. Goodwin about the safety of Bayer CropScience’s controversial methyl isocyanate unit has consistently opposed new rules that would push companies to reduce the use and storage of large amounts of toxic materials.

Sam Mannan of Texas A&M University has, for nearly a decade, been a critic of efforts by environmental and labor groups to force chemical companies to study and implement “inherently safer technologies” for their manufacturing plants.

Mannan has testified before Congress on the issue several times, warning lawmakers against adopting such language. At Texas A&M, he directs the Mary Kay O’Connor Process Safety Center, which published a 2002 report that industry often cites in criticizing proposals for such regulations.

Last month, Mannan cautioned a House subcommittee that requiring “inherently safer technologies” might sound good, but is more complex than it sounds and could create more problems than it solves. Mannan said there is no widely accepted way of determining what “inherently safer” means, and questioned whether government regulators should try to come up with one.

“There are dangers associated with mandating a specific assessment model, or requiring an overly burdensome assessment regime,” Mannan testified at a Feb. 11 hearing of a House homeland security subcommittee.

For those who want to read more about this, some of Mannan’s congressional testimony is available here and here. And this is a link to his “White Paper” on the topic. My story in our print edition also quoted this testimony from Greenpeace’s Rick Hind and this testimony from former U.S. Chemical Safety Board member Andrea Kidd Taylor.

Based on the White Paper, Mannan’s favorite analogy seems to be comparing implementation of safer technologies at chemical plants — such as storing less of extremely toxic chemicals — to whether you live in a one- or tw0-story house or whether you install stairs in your house:

One of the most common accidents at home is falling on the stairs. A home without stairs, i.e. a onestory bungalow, is inherently safer with regard to falling on stairs than a two-story house. Even if the stairs are equipped with handrails, non-slip surfaces, good lighting, and gates for children, the hazard is still present (Kletz, 1998). Obviously the choice of an inherently safer house implies positive and negative consequences, which may include aesthetics, cost, and other types of hazards. An elevator could reduce the use of stairs but requires a large capital expense. During construction there would be significant hazards to the residents and construction workers and the stairs would still be necessary for emergency egress. Few families would conclude that installing an elevator is the best use of their resources.

And judging from his congressional testimony, Mannan has some, well, interesting ideas about why chemical companies should be careful including their workers in finding ways to protect plants from terrorists:

While I think consultations of employees and involving employees is very important and should be done, but it should be done carefully. There is a two-edged sword there, and one of the issues we deal with in anti-terrorism issues is the insider threat. In my own testimony I provided some statements as to the threat from not only al-Qaida but mutations of the organization of al-Qaida and their associations with organizations that may have ideological or different view, but maybe anti-establishment and may develop a collaboration with al-Qaida type organizations. So insider threat is an issue that is something that we need to be aware of.


Posted in Chemical industry, Environment, Legal, Worker safety | 23 Comments »

FOIA victory: Court rules that corporations have no right of privacy to prevent records disclosure

Tuesday, March 1, 2011

This just in from The Associated Press:

The Supreme Court ruled Tuesday that corporations have no right of personal privacy to prevent the disclosure of documents under the federal Freedom of Information Act.

Chief Justice John Roberts wrote the 8-0 opinion Tuesday that reversed an appeals court ruling in favor of AT&T. The outcome was notable for its unanimity, especially in view of recent criticism from liberal interest groups that the court tilts too far in favor of business.

“The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations,” Roberts wrote. “We trust that AT&T will not take it personally.”

You can read the ruling here.

Perhaps the ruling will be helpful in West Virginia, where the state’s open records law has a similar personal privacy exemption to that contained in the federal law.

Posted in Courts, Legal, Open government | No Comments »

Black lung cases headed back to Raleigh County

Thursday, February 17, 2011


Three lawsuits filed against the Jackson Kelly law firm, alleging a pattern of fraud and deceit in the firm’s handling of black lung cases on behalf of coal companies, are headed back to Raleigh County Circuit Court after U.S. District Judge Thomas E. Johnston remanded them on Monday. Jackson Kelly had removed the cases to federal court, arguing that the cases belong there in part because the they hinge on whether the conduct in question was allowed under the rules governing the Black Lung Benefits Act, which is exclusively federal.

In his order, which provides a helpful summary of the allegations and the issues at hand, Johnston concluded that the plaintiffs could prove their allegations of fraudulent misrepresentation under state law without having to raise a substantial issue of federal law. Johnston wrote:

Jackson Kelly relies too heavily on the BLBA as setting the standard of conduct applicable in these cases, particularly when it argues that [this] Court has subject matter jurisdiction because one issue is “whether conduct is at odds with the . . . BLBA.” At oral argument, Jackson Kelly reiterated this point when it claimed that, in order to prove their prima facie case, Plaintiffs must demonstrate that Jackson Kelly violated the provisions of 29 C.F.R. § 18.14, concerning the scope of discovery in black lung proceedings before the Department of Labor. Not one element of Plaintiffs’ claims requires resolution of this, or any other, federal question. A court may well turn to the issue of compliance with the BLBA’s provisions as a proxy or indicator of whether Jackson Kelly perpetrated a fraud as alleged, but nothing in the laws of West Virginia requires illegal conduct to satisfy the elements of common law fraudulent misrepresentation. Even if Jackson Kelly’s conduct fully complied with all applicable BLBA standards, Plaintiffs could still establish every element of their fraud claims; conversely, if Jackson Kelly failed to comply with BLBA standards, Plaintiffs would not automatically establish fraudulent misrepresentation under West Virginia law.

Later in the opinion, Johnston concludes:

Although Jackson Kelly’s briefing adequately summarizes BLBA regulations concerning discovery and evidence, at no point does Jackson Kelly identify specific regulations that must be answered to establish one or more elements of Plaintiffs’ fraudulent misrepresentation or legal malpractice claims. Instead, Jackson Kelly argues in the abstract, stating that the BLBA is so comprehensive that any dispute approaching the BLBA process must turn on substantial questions of federal law. Such an argument is utterly insufficient to carry Jackson Kelly’s burden of demonstrating the suitability of federal jurisdiction. (more…)

Posted in Coal industry, Courts, Legal, Raleigh County | 1 Comment »

Hearing set for Thursday on MIC lawsuit

Wednesday, February 9, 2011

Word just in that U.S. District Judge Joseph R. Goodwin has scheduled a hearing for  tomorrow (Thursday) to consider whether Bayer CropScience should be temporarily blocked from restarting the methyl isocyanate unit at its Institute plant.

The hearing is set for 2 p.m. in U.S. District Court here in Charleston.

If you missed it, we had a story on today’s Gazette about the case, and posted a copy of the lawsuit here. As we reported:

Among other things, the suit asks for a court order to block Bayer from resuming production of MIC until comprehensive plant inspections are conducted by the U.S. Environmental Protection Agency and the federal Occupational Safety and Health Administration.

The Institute plant’s stockpile of MIC — for years the plant stored a quarter-million pounds of the chemical on site — has been a focus of concern for many valley residents since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.

Bayer is in the process of restarting the MIC unit after a significant modification project, but plans to operate it for only about 18 months before it stops making, using or storing the chemical at its Institute plant.

Photo by Tom Hindman, Charleston Daily Mail, via The Associated Press

Bayer lawyers have not yet filed any papers responding to the lawsuit, but plant spokesman Tom Dover issued this follow-up statement today:

Bayer CropScience has received a copy of the court filings, and they are under review. In the meantime, it is important that the community know about the extensive efforts we have implemented to ensure the safe start up and operation of the new production unit. First and foremost, we’ve invested more than $25 million in new production, safety and communications equipment. We have completed our planned reduction of methyl isocyanate storage by 80 percent and have eliminated all above-ground storage. The employees responsible for this operation have undergone extensive process and safety training associated with these operations. And we have established several new safety and communications processes, working closely with Metro 911, the KPEPC, and others. All of these efforts — as well as numerous process and safety reviews along the way, including one recently completed by third-party experts — have led to our assurance of a safe operation. We are fully dedicated to a safe startup of these operations and remain confident that we will meet our own high expectations, as well as those of our neighbors and community.

I asked Dover if I could interview someone from the plant who is overseeing the restart of the unit, or if the company would make public this “third party” safety review referred to in his statement. I haven’t heard back yet…

UPDATED:

I still haven’t heard back from Tom Dover on my request, but last evening Bayer lawyers filed this legal brief responding to the brief the residents’ lawyer filed in support of their motion for a Temporary Restraining Order.

Of course, the lawsuit accuses Bayer not only of  “chronically reckless operation” of the plant, but also of “admitted dishonesty in public communications” with residents of the Kanawha Valley.”

Readers may recall that Bayer CEO William Buckner testified before a congressional committee that his company tried to use homeland security regulations to avoid “negative publicity” about the August 2008 explosion that killed two plant workers:

There were, of course, some business reasons that also motivated our desire for confidentiality. These included a desire to limit negative publicity generally about the company or the Institute facility, to avoid public pressure to reduce the volume of MIC that is produced and stored at Institute by changing to alternative technologies, or even calls by some in our community to eliminate MIC production entirely.

Also, the U.S. Chemical Safety Board has noted how Bayer stonewalled local emergency responders seeking information about the incident and misled local residents when company officials insisted that no dangerous chemicals were released, when in fact key monitors at the plant weren’t working the night of the incident.

CSB investigators, of course, found that the fatal explosion never had to happen, if Bayer had operated its plant properly. Here’s the agency’s video of what happened:

Posted in Environment, Legal, Public safety, Worker safety | 8 Comments »

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