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This is a hopeful story.  But it must first wind its way through some seemingly discouraging territory.  Hang with me, though, and we’ll get to the hopeful part.  I promise. Here’s the discouraging part: You cannot trust your government to tell you that your air or water is contaminated.  Or to protect you against the contamination. That’s a terrible thing to say.  But it must be said because it’s true.  Here’s just some of the evidence that we’ve seen:

Our First Case:  Early on, the state EPA was about to give a polluted industrial property an environmental “clean bill of health” (called a “No Further Remediation” letter).  This means that EPA was about to declare that the nasty chemicals (mostly TCE) dumped on the company’s property could not migrate off of it in groundwater.  We didn’t believe it.  So we spent our own money to test the groundwater in our clients’ neighborhood across the street. We found TCE all over the place.  In fact, as more testing over the next few months would prove, TCE from the industrial property had traveled almost three miles off-site.

Our Most Recent Case:  In a case, we just filed in Madison, Wisconsin, the state’s environmental agency (the Wisconsin Department of Natural Resources: “DNR”) earlier this year asked a local manufacturer to test in and around the homes of some of the families living behind the company to see if a chemical (mostly PCE) spilled years ago on company property had moved off-site.  The testing turned up PCE almost everywhere they looked… in the dirt in the families’ yards; in the groundwater running under the neighborhood; in gas underneath some of the homes; and even in the air that people breathe literally inside one of the homes. So, in forcing this testing, the government did its job, right? Hardly. DNR knew since at least 1994 that the company’s property was contaminated with PCE, and that there were families living only 50 feet away.  And yet DNR waited nearly 17 years to see if any of these families had been affected by the PCE.

Pilsen:  Families in Chicago’s largely Latino Pilsen community had been begging the Illinois EPA for years to test local neighborhoods to see if lead – – a known cause of neurological injury to children – –  from two local plants was contaminating the community’s air.  Finally, in 2011, EPA relented and put a lead monitor on the roof of the local elementary school, where 500 children breathe the air for 6-7 hours each weekday.   Dangerously high levels of lead were found in the air at the school. Even though the foot-dragging Illinois EPA didn’t deserve it, the people of Pilsen have had the good grace to not say, “We told you so.” Now, thousands of children who attended that elementary school over the years are left to worry whether they have been injured by lead exposure that their government had to be begged to take seriously.

The Bronx New School:  In 1991, New York public school officials made the horrifyingly bad decision to rent an old industrial site and use it for an elementary school.  Despite an extensive, publicly-available record documenting environmental problems at this site, New York not only went ahead and housed the school there anyway, but did no testing at all to see if the school was even safe for the children to attend.  Then, in 2011 – 20 years and hundreds of young graduates later – New York finally got around to the testing. Guess what?  They found levels of TCE in the air inside and underneath the school that were up to 10,000 times higher than the level that the State of New York says is dangerous.  And even then, school administrators waited 6 months, until the end of the school year, to tell the parents that their kids’ school was dangerous and that the kids shouldn’t go there anymore.

Jana’s Case:  A few years ago, we represented a teenage girl named Jana.  Jana had contracted a form of cancer known as Non-Hodgkin’s Lymphoma (“NHL”), caused by exposure throughout Jana’s childhood to chemicals in her family’s water supply that had been dumped years earlier by companies in a nearby industrial park.  Jana’s family didn’t know about the contamination… until Jana got sick. But the really sad part was that the State’s EPA knew of the chemicals in the water… for many years… and didn’t tell Jana’s family.  So, we helped to pass a new “Right to Know” law, which forced the State to notify families like Jana’s that their air or water was polluted.  They actually needed a law to force them to do this… even though it’s the most important part of their job.

TCE causes cancer:   US EPA just classified TCE as a “known” human carcinogen.  [see our 10/4/11 blog on this subject: “At Long Last EPA Declares TCE To Be A Human Carcinogen]  It used to be a “possible”, then a “suspected”, human carcinogen.  EPA has now removed the doubt.  It says that significant exposure to TCE can in fact cause kidney and liver cancer, and NHL (like it did to Jana).  Other cancers, too.  This deadly chemical is one of the most common pollutants in our environment.  So, in labeling TCE as a “known” cancer-causer, EPA was doing its job, right?  Protecting the people with important information, right? Do you know how long EPA has been “studying” whether TCE should be classified as a “known” carcinogen?  Since 1987.  Almost a quarter-century. This pathetic delay occurred because every time government got close to announcing the truth about TCE – “IT CAUSES CANCER” – the industry of TCE polluters and their lobbyists swung into action, and delayed the government’s final decision.   And they are at it again.  The next step that the government needs to take is to change the TCE clean-up standards, i.e, lower the levels of “acceptable” concentrations of TCE, now that we know for sure it causes cancer.  This will make TCE clean-up at thousands of contaminated sites all over the country far more expensive for the companies who dumped it there.  So, the TCE polluters’ lobby is hard at work… again.  Any bets on when we’ll see the new TCE clean-up standards?

And there’s lots more where this came from.  Story after story about how the government just does not protect people against environmental threats. In the 12 years that I’ve been representing the victims of contamination, the government’s failure to protect the people is the most predictable, and discouraging, thing.  Time after time, the government just does not seem to give a damn.  Or even worse:  it’s on the polluters’ side, dutifully telling the people that the toxins in their air and water just aren’t that big of a deal, or that government just can’t seem to figure out where they came from.  Or that there’s no need to test, or test more.

But here’s the hopeful part.  Our experience proves that you can shame your government into doing its job to protect you and your family.  It’s called “democracy”.  And it turns out that democracy still works.  Not all the time, of course, and seldom quickly and certainly not perfectly.  But enough to make me believe that democracy still works. Here are the hopeful signs: Tonawanda, New York is a working-class town outside of Buffalo.  Here’s what we know from a great piece of reporting by The Center for Public Integrity [see this article:  “Where regulators failed, citizens took action — testing their own air] After years of government refusals to take seriously her complaints about the “toxic blue haze” that was making her sick, Jeani Thompson and her neighbors decided to prove to their government that there was indeed a problem.  So, using buckets and hand-held vacuums, Jeani’s group did the testing that their government had refused to do.  And, they found dangerously high levels of benzene and other chemicals in the air that they were breathing.  They brought their test results to environmental officials.  Then they organized a group of families living next to the plant they believed to be the source of the pollution.  These families would file reports whenever toxic soot would belch out of the plant, and make it hard to breathe or stink up the neighborhood. Bottom line:  they shamed their government into action.

Environmental officials have now brought a host of civil and criminal enforcement actions against the plant.  There were even unannounced government inspections of the plant, and the government’s own testing of the local air quality – finally.  All of this revealed, not surprisingly, that the plant was a hell-hole of environmental violations; that the air was as bad or even worse than Jeani and her neighbors had claimed; and that plant employees were habitually “under-reporting” – by massive amounts – the volume of chemicals that the plant was emitting every year.

In our contamination cases, we have learned the same thing as Jeani and her neighbors about getting the government to do its job.  Because, as in Tonawanda, New York, each of our cases has shined a bright light on a terrible problem, and made it so that the government could not look away. Let’s just look at the cases I mentioned above:

Our First Case.  Yes, it’s true, that government was ready to sweep the entire problem under the rug.  But, that’s not what happened.  When we did our own testing for the people – at a cost of only a couple hundred dollars per home – and found contamination, the EPA (finally) took notice.  We publicized the results of our tests.  EPA couldn’t any longer pretend that there wasn’t a problem.  So, the agency was forced to act.  In response to our test results, EPA representatives actually tested more than one hundred additional homes themselves.  They found that many of them were contaminated and that the chemicals had traveled miles away from the plant in the groundwater. And something very good resulted:  many unsuspecting families in the area learned that they had a problem, and could begin to protect themselves.

Our most Recent Case:  Yes, it’s true that the DNR largely ignored a serious problem for 17 years.  There’s really no forgiving that, and someone at DNR should lose his/her job over this.  But, when we and the families started making a lot of noise – very publicly – about how badly the DNR had let the people down and was coddling the politically-connected polluting company, DNR was embarrassed into taking at least some action.  As things stand today, DNR is requiring the company to do more testing in the next year than it did in the first 17 years.  And the state’s attorney general is now involved… so that, if the company drags its feet on this new round of testing, the state’s chief law enforcement officer goes after them.  It’s still not nearly enough, of course.  There are still far too many area families who do not know that they have a serious problem.  But it’s progress.

Pilsen and The Bronx New School:  Yes, it’s true that the necessary testing came years too late.  But, in both communities, the testing has now been done, and local families can begin to identify and test the children who may have been hurt by the contamination.  Also, the Illinois Attorney General recently has filed what seems to be a pretty tough case against one of the lead polluters, and already has gotten the company to agree to operational changes that will significantly reduce lead contamination in the neighborhood.  Finally, the fact that government resisted testing for so long – and found dangerous levels of contamination once it did test – will forever serve as a weapon for the people in future battles over contamination in those communities.  They will always be able to say to school officials and environmental agencies:  “Remember what happened the last time you told us everything was OK?  Remember what happened the last time you told us that no testing was necessary?”

The point here is: whether it’s Tonawanda or Pilsen or The Bronx or your neighborhood, families dealing with contamination, or suspecting contamination, must be both realistic and demanding.  You must realize that left on its own, your government cannot be expected to protect you from environmental contamination.  But you must also know that it can be expected to not want to be embarrassed. So, embarrass them.  Take the tests yourself, like Jeani Thompson and her neighbors did.  Like we did in our first case.  Go to the TV and newspaper reporters with the results, and your concerns about your health and property.  If you catch the government failing to do its job to protect you, or siding with the polluter, make them pay the price.  Demand the firing or resignation of the officials who would not take you seriously.  Push for the passage of a new law (like Jana’s law) or ordinance to forbid the government from refusing ever again to do the necessary testing. Or to tell you the results.  Publicly remind government officials that they were wrong about something very important to you and your family.  And about how difficult it will be for them to ever again earn your trust.

You can even file a lawsuit, not only to prove how dangerous and wide-spread the contamination is, but also to expose how slow and ineffective, and polluter-friendly, government’s response has been.

Shame them into doing their jobs.   It’s the democratic thing to do.

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