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May 2011 Archives

Another Big Day for Polluters/Another Bad Day for America

On nearly the one year anniversary of the Gulf Oil Spill, last week the President and Congress shook hands on a deal that stripped more than $1.5 billion - 16% - from the budget of the Environmental Protection Agency, specifically gutting funds for reducing pollution from coal mining and power plants. Why?  Too much clean air in power plant neighborhoods?  Or maybe this 16% cut is simply EPA's fair share toward trimming the nation's deficit? Hardly.  EPA got one of the biggest percentage cuts of all - compare with the Department of Defense, which actually got a $5 billion increase.  Put it another way:  if every federal program had gotten a cut as large as 16% last week, our deficit problem would be solved.  So, the big cut for EPA was obviously more than "fiscal responsibility" at work. Plain and simple, the need for a budget deal last week served as an excuse for an attack on EPA by big polluters and those elected representatives who serve them in Washington.  Their logic was breathtakingly simple.  If we take EPA's money away, EPA can't make us stop polluting the air and water.  So that's what really happened last week. But the truly bad thing about this deal is not so much what it did to EPA's current budget, but that it sent the signal - from the Obama White House, no less - that protecting families and their homes against pollution is just not a priority these days.  That when someone is searching for funding to sustain tax cuts for millionaires, or to add to the Defense Department budget for war, or for just about any other reason at all, we will sacrifice our health and safety. Bad idea.  Really bad idea. Here's what we've learned over the last 10 years fighting polluters in court:  The polluters have EPA on the run...right now.  Even before last week's massive EPA budget cut takes hold.  In every case, we saw polluters employ armies of lawyers and consultants to browbeat an under-staffed EPA into thinking that the polluter really isn't responsible for the pollution in the first place, or that the pollution really isn't that dangerous after all.  Or both.  Their goal is to spend as little money as possible.  And they accomplish it by slowing down - to a 50-year crawl, in some cases - the timeline for cleaning up toxic dump sites that are the source of contamination in neighborhoods all over the country, and minimizing the scope of any clean-up that EPA ultimately decides is necessary. And now, after last week, EPA is even less able to do battle with them on these critical issues. Last week was just the latest in a series of acts of governmental irresponsibility when it comes to our environment.  Another demonstration that we simply refuse to learn from our mistakes....that our memory is shockingly short.  It was a big day for polluters.  And bad news for everybody else.   A hell of a lot more than the budget got cut.  Regrettably, there's more to come.

Five Things to Do if Your Water or Neighborhood Is (or Might Be) Polluted

(1)        Get smart. Find out the names of the polluting chemicals. You will usually learn them, as most of our clients have, from a newspaper article or TV story, or from a letter or knock on the door from a government official.  You need to know the chemicals' names, so that you can learn about how they may affect your family's health. Here's a good website with commonsense information about the health affects of most chemicals found in polluted water, air and soil. When you learn this information, you will then understand what you must do to minimize, or eliminate altogether, your family's exposure to the pollution. (2)        Get control. You need reliable information in order to protect yourself and your family.  And you need it sooner, rather than later.  So, resolve that you will take responsibility for getting answers, and not wait for government, or the polluting company, to decide when to give them to you.  Government tends to move slowly, and its resources for protecting the environment are usually stretched very thin.  The polluting company may wish, in order to save money or its reputation, to down play the extent of the pollution it has caused, or even deny that there is any problem at all.  So don't settle for getting answers, or the problem getting fixed, on their timetable.  It's your family, not theirs, that's living with the problem. (3)        Get noisy. The old adage that "The squeaky wheel gets the grease" applies big time to fixing pollution problems.  So you must make some noise - to get answers, get heard, and get your problem solved sooner, rather than later.  Because polluted water, air or soil typically affect many families, not just one, neighbors can make noise by banding together to do the necessary research, make phone calls, hold informational meetings and rallies, etc.  Another way to make noise is to enlist the help of local newspapers and TV in making the pollution in your neighborhood a high profile story that puts pressure on government to fix it. (4)        Get a lawyer. Fighting pollution in your neighborhood is usually scientifically and legally complicated.  The company that polluted your neighborhood has had a lawyer working - often behind the scenes, and for years - to get her client "off the hook" for the problem it caused.  And that lawyer has hired scientists to help accomplish this goal, usually by offering theories about why the company really didn't do anything wrong, or about how the pollution isn't really as widespread or dangerous as it truthfully may be.  While you will never have the money that the company has to pay lawyers and scientists, hiring an experienced environmental lawyer of your own is the best way to get some power on your side, and use the legal system to help you get the answers and solution that you need. (5)        Get tough. Don't panic.  When you arm yourself with reliable information, band together with your neighbors, and hire a good lawyer to do battle with the polluter, you have taken the most important steps to protecting your family.   While panic is an understandable human reaction to first learning that your family's water, air or soil may be polluted, don't allow those feelings to cause you to lose sight of those steps - like the ones we mention above - that you must take to protect the people who matter to you most.  The opposite of panic - denial - is also an emotion to be avoided.  Pretending that there is no problem does not take you and your family out of harms' way... it keeps you there.  Get informed.  Get represented.  Get moving.

Why We Shouldn't Trust What Polluters Say

It's a heartbreaking spectacle.  Japan's Fukushima nuclear reactor spewing radioactive material into the air and ocean. Yet, even though it's half a world away, this disaster offers a lesson to Americans that is much bigger than simply, "Let's be careful about nuclear power."   The message really is: "We cannot afford to trust our health and environment to what polluters say." We should admire the Japanese for their discipline and unity under crisis, of course.  But we shouldn't mimic the extraordinary trust and obedience they extend to the powerful companies that dominate life in Japan.  These companies - like the Tokyo Electric Power Co. ("TEPCO"), that operates the Fukushima plant - use the people's trust to conduct their business in a culture of secrecy.  The result is a nuclear power plant built on the ocean's shore in the heart of an earthquake-active region that is not designed to withstand a tsunami, and "safety" reports publicized in the aftermath of the tsunami-driven disaster that falsely underplayed the danger to the Japanese people from the escaping radiation.  While TEPCO at first said the radiation levels were only modest, and asked for the evacuation of citizens within just 20 kilometers of the plant, America's Nuclear Regulatory Commission - no protector of the people, by any means - described those same radiation levels as "extremely high," and insisted on the evacuation of all Americans within 80 kilometers of that plant.  After weeks of TEPCO's false assurances, we now know the truth:  Fukushima is history's worst nuclear power plant disaster. We Americans shouldn't get too smug about this.  Before we write Fukushima off as something that happened far away and would never happen here, let's be honest: We Americans give the same undeserved trust to our companies.  We allow them repeatedly to belch poison into our air and water without making them pay a price for it; without demanding that they tell us the full truth about what they have done; and without making them clean it up.  Sometimes it's because we're just so happy to have the jobs that we tolerate this treatment.  Sometimes it's because we're not paying attention, and so we don't know what they're really doing to us.  Sometimes it's because we believe - and we're wrong when we do - that if there really were a serious environmental danger our government would tell us and protect us.  With the more than 20,000 people I have represented against polluters in the last decade, all of these explanations apply. Below, I tell a real-life story from my first pollution case, where a consultant for the polluter, like the spinners at Japan's TEPCO, falsely assured the people about their safety.  And I itemize the lessons that a decade of battling polluters has taught me about the things we hear from polluters that we just cannot afford to trust.  In the end, the vigilant protection of our health and environment - whether here or in Japan - demands that we not accept on faith whatever polluters want us to believe. Things You Shouldn't Trust When The Polluter Says Them I'll never forget what he said. In the first pollution case I ever worked on, the consultant for the polluting company looked reassuringly into the eyes of the many anxious families who had come to the public meeting to get some answers.  They wanted to hear from the consultant about whether the toxic chemicals that the company had dumped onto its property - right across the street from the families - had contaminated the groundwater.  It's the water that for years had been piped into their homes, and used for drinking, preparing food and bathing. "I've done studies," the consultant said, "and I can promise you that the contaminated groundwater never got off the company's property.  So, it could not possibly get to your homes." He was wrong.  Testing a few months later would prove it:  at the very moment that the consultant was offering his most sincere assurances to those families, the contaminated groundwater not only had gotten off the polluter's property, and moved across the street, but had in fact traveled three miles off the company's property, and was underneath thousands of homes in three different towns. It had been there for years. Point of the story?  You can't trust what polluters tell you about how bad their pollution is.  Different reasons for this.  Some are just liars, sure.  They lie about having dumped the chemicals in the first place, and then they lie about the damage it's done.   Others are cheap; they know that if they admit that they polluted their neighborhood they may have to pay a lot of money to clean it up.  And still others are in denial; like Japan's TEPCO, they don't like to think of themselves as the kind of company that would hurt people or the environment, so they pretend that they didn't.  Whatever the reason, their incentive is to not tell you the truth. Here's a list of favorite lines from "The Polluters' Public Relations Playbook."  I accumulated these "Playbook" lines over the last decade, fighting polluters in court on behalf of families, and calling polluters out on their phony assurances. Don't buy any of these lines.  Trusting them will very likely make you feel, maybe not until years later, like you've been had.  Most importantly, your trust may actually put you and your family in danger. (1)        "The levels of the contamination are not high enough to hurt anyone." That's what TEPCO first told the people of Japan.  The truth is that most of the chemicals polluting American groundwater - like "TCE" and "PCE" - were once used to clean grime off parts in a factory.  So, you don't need a scientist to prove that these chemicals don't belong in the human body.  Confirming this, USEPA officially states that there is no safe level for TCE and PCE.  So, don't let anyone tell you otherwise. (2)        "We're working with the Environmental Protection Agency on the problem." The truth is that many polluters hire a small army of lawyers and consultants to fight EPA, and convince EPA that the problem isn't very serious, or that the company had nothing to do with it in the first place.  Over the years - and many of these problems sadly play out over years, even decades - the polluter's army usually wears down the under-staffed EPA, with the result that the final clean-up "solution" ordered by EPA does not really protect the people that EPA is in business to protect.  More accurate to say that polluters "work with" EPA like fox "works with" the hens. (3)        "The contamination is fully contained on company property." See my "consultant" above.  The truth is that the polluter often does not really look to see how far its pollution has spread.  The game is this:  the polluter does not actually test the groundwater in the neighborhood that might have been contaminated with the polluter's chemicals.  Why?  Too dangerous. They might actually discover contamination there.  Instead, the polluter hires a consultant who develops a "model" - a very expensive guess, really - that uses many loaded assumptions to predict, voila!, that the contamination actually hasn't moved very far at all.  It is by this process that the polluter's consultant can confidently assure nervous families that the contamination hasn't moved off his client's property....when it has already moved 3 miles off the property, and polluted thousands of homes. (4)        "We take very seriously the health of our neighbors." The truth is that many polluters hide the truth from their neighbors for years.  Or, like TEPCO, for however long they can get away with it.  Polluters live in terror of the moment that the neighbors do find out, and work overtime to keep them in the dark.  Beyond the rank immorality of keeping this kind of information a secret, the polluter is hurting itself with the secrecy.  The longer the pollution remains a secret, the more harm it does, and the more expensive it is to fix.  For my client-families, the most anguishing part of their neighborhood being contaminated is finding out that the company knew years ago that they were in danger, but didn't respect them enough to give them the information they needed to protect themselves and their children. (5)        "Yes, your neighbor's well is contaminated, but yours tested clean." The truth is that wells don't get contaminated, the groundwater that feeds the wells does. The contaminated groundwater feeding your neighbor's well is the same groundwater feeding yours.  And that groundwater is always on the move, meaning that the levels of contamination discoverable in any given water well are always moving and always changing.  So, while your well tested "clean" today, literally tomorrow it might test with a high level of contamination.....and tomorrow your neighbor's well may test "clean."  Bottom line: if today your neighbor's well tests as contaminated, you should assume that yours is too, or will be, and take the same precautions. * * * * It's a very human tendency in the wake of disturbing news to hear assurances and want to believe them.  When we are jarred by learning that our air or soil or water may be polluted, our minds search anxiously for the words that restore our peace of mind.  We want to be returned as quickly as possible to the feeling that our homes and neighborhoods are safe.  So when someone, even the polluter, says to us: "Don't worry, you're safe," we really want to trust it. But history tells us, again and again, that this trust is not deserved.  Or worse, it is dangerous, because it causes us to drop our guards, when we should be aggressively protecting ourselves and those we love.  That goes for here.  That goes for Japan.  That goes for any place that there are human beings and polluters who mistreat them.

Big Day for Polluters

Last week, the President and Congress shook hands on a deal that stripped more than $1.5 billion - 16% - from the budget of the Environmental Protection Agency, specifically gutting funds for reducing pollution from coal mining and power plants. Why?  Too much clean air in power plant neighborhoods?  Or maybe this 16% cut is simply EPA's fair share toward trimming the nation's deficit? Hardly.  EPA got one of the biggest percentage cuts of all - compare with the Department of Defense, which actually got a $5 billion increase.  Put it another way:  if every federal program had gotten a cut as large as 16% last week, our deficit problem would be solved.  So, there was obviously more than "fiscal responsibility" at work. Plain and simple, the need for a budget deal last week served as an excuse for an attack on EPA by big polluters and those elected representatives who serve them in Washington.  Their logic was breathtakingly simple.  If we take EPA's money away, EPA can't make us stop polluting the air and water.  So that's what happened last week. But the truly bad thing about this deal is not so much what it did to EPA's current budget, but that it sent the signal - from the Obama White House, no less - that protecting families and their homes against pollution is just not a priority these days.  That when someone is searching for funding to sustain tax cuts for millionaires, or to add to the Defense Department budget for war, or for just about any other reason at all, we will sacrifice our health and safety. Bad idea.  Really bad idea. Here's what I learned over the last 10 years fighting polluters in court:  The polluters have EPA on the run...right now.  Even before last week's massive EPA budget cut takes hold.  In every case, I saw polluters employ armies of lawyers and consultants to browbeat an under-staffed EPA into thinking that the polluter really isn't responsible for the pollution in the first place, or that the pollution really isn't that dangerous after all.  Or both.  Their goal is to spend less money.  And they accomplish it, by slowing down - to a 50-year crawl, in some cases - the timeline for cleaning up toxic dump sites that are the source of contamination in neighborhoods all over the country, and minimizing the scope of any clean-up that EPA ultimately decides is necessary. And now, after last week, EPA is even less able to do battle with them on these critical issues. Last week was a big day for polluters.  And bad news for everybody else.   A hell of a lot more than the budget got cut.

The Gulf Oil Spill, Fukushima, the Budget Bill: Why The Government Doesn't Protect Us

We've been representing families in lawsuits against polluters for filling their homes with toxic chemicals for the better part of the last decade. We've obtained safe water supplies and clean air in homes for thousands of families, and recovered millions of dollars in lost property value for them.  During jury selection we've asked prospective jurors to raise their hands if they believe that government adequately protects them from environmental harm. The next person who raises her hand will be the first. Almost a year ago to the day, we and the rest of the world watched in horror as a single deep water well in the gulf exploded and began spewing millions of gallons of oil into the Gulf of Mexico. For weeks on end we listened to lies from industry, and from government, about everything from how this could happen, to the severity of the problem, to how and when they would clean it up. Now we hear lies about the damage done, including the destruction of industries, families, wildlife and the ecosystem. The recently issued government report on this disaster lays the blame at the doorstep of BP and, to no one's surprise, does not emphasize the responsibility of government for allowing this to happen. Truth be known, this was one well among thousands. The whole approach to permitting and regulation of drilling in the Gulf has been folly from the word go. It has been dictated by industry and the politicians who depend on them for their jobs through our coin-operated political system. More recently, we and the rest of the world have watched in horror as the nuclear plants in Fukushima imploded and have begun to reek havoc by spreading dangerous levels of radiation throughout Japan. Again, we've listened to lies from industry and the government, this time Japan, about everything from how this could happen, to the severity of the problem, to how and when they will stop it. The spin about how little harm has been caused is just beginning, but make no mistake, we will not hear the truth. The truth is they don't even know how much damage this will cause and may not for generations. The problem remains out of control. And now, the budget deal. Last week, on the one year anniversary of the "spill" in the Gulf, our President and representatives in Congress cut a deal on the budget that takes $1.5 billion away from EPA's budget. 16% of its total budget! Its recent efforts to regulate atmosphere destroying emissions have been shelved. The prospect of meaningful enforcement has been crushed. And this, as part of a deal that increases our war budget by $5 billion dollars. Industry and its henchman worked hard for this. Its no wonder that no one believes government protects them from environmental harm. It doesn't. It can't. And it won't until we take our leaders out of the pockets of industry.

EPA Can No Longer Ignore Toxic Vapor Intrusion When Choosing The Sites Most In Need Of Cleanup

After Congress passed the Superfund law in 1980, ostensibly to set up a system to clean up the most dangerous hazardous waste sites in the country, EPA created a system to evaluate the sites most deserving of attention in the form of government money for cleanup. That system, called the Hazard Ranking System (HRS), establishes a formula for evaluating how dangerous sites are to people and the environment. It looks at many things, like the chemicals involved, exposed populations, and others, and puts a mathematical value on them. If the site scores above a certain number it can be entitled to real attention in the form of immediate cleanup activity funded with government money. If the score is below that number, well.........good luck. As we all know, quick action on the part of government is anything but that. But, if a site does not make the grade for what the government calls quick, the attention it will get from regulators is beyond slow. Sites can and do wallow around in the typical regulatory world for decades upon decades. Those affected are left in the cold; often, unknowingly exposed to high levels of toxic chemicals for years. One of the most direct and dangerous ways people are exposed to toxic chemicals is by breathing them in their homes. Ingestion in this way can be much more dangerous than drinking tainted water; and this is true for a number of reasons. On the one hand, exposure takes place non-stop. If the air in our home is filled with toxic chemicals, we and our children are taking them in 24/7, or at least whenever we're home. Even while we're sleeping. This is not true of exposure through tainted water. So, when toxicologists calculate dose, or the amount of the toxic chemicals we take in, the doses can be very high. In addition, when we breathe toxic chemicals we immediately expose lung tissue which distributes the chemicals throughout our bodies. How do these chemicals get into the air in our homes is an obvious question. The answer quite often is through a process called vapor intrusion. Many of the most common and dangerous industrial chemicals contain volatile organic compounds, or VOCs. Simply put, this means that they like to mix with air. Anyone who has filled their car with gas knows that gas contains VOCs because they smell them, and unfortunately ingest them, every time they fill up at the pump. All over the country companies have polluted the groundwater with VOCs, which are common industrial cleaning agents. When the polluted water runs beneath our homes it off-gases those chemicals into the air, they collect beneath, and move into, our homes. And unlike the gas station experience, they are odorless. We don't even know its happening. Oddly enough, when EPA established the HRS it did not include vapor intrusion among the threats to be evaluated when determining the scoring system and prioritizing sites. That remains true today even though there are hundreds of sites all over the country where we know people have been and are breathing large amounts of toxic chemicals in their homes. Case in point. We are just finishing a lawsuit filed on behalf of hundreds of people in a small town in Indiana. These folks live in homes in the neighborhood of a factory. EPA had been looking at the site under its normal "slow boat to China" process for decades, going back to the mid-80's. It never prioritized it. The company involved was allowed to drag its feet and do little or nothing for years on end. Even when the company tested the home of its plant manager and discovered cancer-causing chemicals, it concealed that information from others in the neighborhood for years. Finally, in 2008, testing was done in some of the homes in the neighborhood, widespread infiltration of the air in the homes with cancer-causing chemicals from the factory was discovered, and we and EPA have been working to require remedies in the homes and compensation for the families. But, the sad truth is that these folks were living with and breathing these chemicals for decades. They were raising their children in these homes and had no idea they were exposing them. Parents feel like they let their kids down. They feel that their government let them down. If there is any good news, it is that we can do something about this. EPA is currently considering including vapor intrusion in the HRS analysis. To say that it's about time is to state the obvious. But, we must make sure that it does. Such an obvious and dangerous threat can no longer be ignored. We owe it to the folks in that small town in Indiana, to their children, and to ours.

Another Overlooked Vapor Intrusion Problem Surfaces

Yet another case of toxic vapors invading homes through the process of vapor intrusion came to light recently in Madison, Wisconsin, where families were told that the air in their homes has been polluted with carcinogenic chemicals from the nearby Madison-Kipp manufacturing plant. PCE, a dangerous cleaning solvent which was allegedly disposed of decades ago, and supposedly cleaned up, is now showing up in homes near the plant property. Some of the homes have been fitted with vapor sucking devices designed  to pull the polluted vapors out from under the homes to prevent contamination of the air inside.  The families, many of whom have young children, are being told that the dumping of the harmful chemical took place "decades ago", that the levels are "slightly" elevated , and that the problem is just a "potential concern".  But, nothing could be further from the truth.  The truth is that the company claims to have stopped using the chemical more than 25 years ago and also claims to have cleaned up its property.  Very few homes have been tested. The extent of the problem has not been determined.  The levels which have been detected are many times higher than the levels considered safe by many regulatory agencies. The truth about these vapor intrusion problems can be sobering.  Often times we see exactly what has happened here.  The company claims to have stopped using the chemical and claims to have cleaned its property.  But, these chemicals typically contaminate the groundwater under the factory and move with it off the plant property under nearby homes.  The water then off-gases these dangerous chemicals into the homes sitting on top of the contaminated water.  The fumes are odorless, so the people living in the homes have no idea they are there.  And, unlike then problem presented by polluted tap water which exposes people when they ingest it or bathe in it, people are exposed to these chemicals 24/7...even when they sleep. Unless, and until, the contaminated water is cleaned, these families will remain in harms way.  It goes without saying that even  a home fitted with one of these vapor-sucking contraptions will be difficult, if not impossible, to sell.  The American dream of those families becomes a nightmare.

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