February 2008 capitol observations



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***TRANSPORTATION

Proposed New Safety Rules For School Buses
The National Highway Traffic Safety Administration has recently given notice that it intends to implement several upgrades to the school bus crash protection requirements. This notice of proposed changes results from a 2002 comprehensive research program conducted by the NHTSA to evaluate ways to improve school bus safety. One important proposed requirement is the use of lap and shoulder restraint systems in school buses that weigh 10,000 pounds and less. For school buses over 10,000 pounds, the new requirements give guidance to state and local jurisdictions on installing seatbelt systems in these larger buses. Under the proposed upgrades, the state and local authorities would still have the final say on whether to install lap and shoulder restraint systems in the larger buses.
From our work in product liability cases, it is clear that the three-point restraint systems provide an added safety factor. I hope school systems across the county will require appropriate restraint systems for our children in school buses. This is a safety issue that can no longer be ignored. Alabama currently is “studying” the problem. It’s past time for more studies. We need action by those who have the authority to bring about the needed changes.
The Bush Administration Has Little Regard For Highway Safety
The Bush Administration is now allowing full access to roads in this country to another Mexico-based carrier — despite Congress’ clear intent that the reckless NAFTA trucking pilot program be brought to an end. The Federal Motor Carrier Safety Administration announced last month that the Baja-based carrier Madereria Las Lomitas is now authorized to send trucks on U.S. roads. That means 12 Mexico-based carriers are now sending 57 trucks across the U.S. and are no longer restricted to the border zone. This announcement came on the heels of the Administration’s shocking statement. As reported last month, that it would continue with the NAFTA trucks pilot program. In December, President Bush signed into law an omnibus appropriations bill that cut all funds for the program, and that makes the latest move even more weird.
Joan Claybrook, President of Public Citizen, had this to say concerning the Bush Administration’s actions:
FMCSA’s purposeful defiance blatantly disregards the newly passed federal law. The appropriations provision prohibits using any funds to “establish” a pilot program. The dictionary’s definition of “establish” includes “to introduce and cause to grow and multiply.” FMCSA has told reporters that the law bars only the “establishment” of new pilot programs and that its current pilot program — the exact same one that prompted Congress to cut off funding — was “established” in September 2007. Yet FMCSA continues to authorize new carriers, further “establishing” the program in any meaning of the term.
This dubious interpretation isn’t just tortured logic — it’s a willful repudiation of the clear intent of Congress to end this pilot project. Congress has repeatedly and overwhelmingly denounced the flawed program as dangerous and unjustified. The Bush Administration’s insistence on pushing forward, despite requirements to put the public’s safety first, forced Congress to cut funding for the project. It is absolutely unacceptable for the Administration to pick and choose the laws it will respect. FMCSA has no basis to ignore this law and in doing so shows it has no regard for the well-being of American drivers.
It is impossible to understand why the Bush Administration would put innocent citizens at risk for death or serious injury by allowing these Mexican trucks to operate on U.S. highways. Hopefully, the next president will undo what the Administration has done and get these potentially unsafe trucks off our highways.
Source: Public Citizen

Alcohol-Related Motor Vehicle Crashes Cause Great Misery

 

In Alabama, 475 people were killed in alcohol-related motor vehicle crashes in 2006. I haven’t yet seen the number of deaths for the state in 2007, but I won’t be surprised if the 2006 totals aren’t eclipsed. Almost half of the total traffic fatalities in the state over the past few years have been alcohol-related. That is bad news and unacceptable. Surveys have revealed that over 10 million people between the ages of 12 and 20 used alcohol in some form over the past 2 years. This is a most serious matter and one that can’t be ignored by public officials at the state and local levels. Of course it’s a national problem with every state having a problem related to drinking and driving by persons of all ages. But the large number of young persons involved is of special concern. If you want to know more about what you can do to combat the problem go to this Web site: www.madd.org. In fact, I would encourage you to support MADD in its fight against the evils of drinking and driving.



Design Flaw Cited In Bridge Collapse
It now appears that steel plates connecting beams in the Interstate 35W bridge in Minneapolis were too thin by half and fractured. This was found to be by the National Transportation Safety Board "the critical factor" in the collapse that killed 13 people and injured 145. The connectors, called gusset plates, were roughly half the 1-inch thickness they should have been because of a design error, according to the NTSB. Investigators found 16 fractured gusset plates from the bridge's center span. Concerning this finding, Chairman Mark Rosenker observed:
It is the undersizing of the design which we believe is the critical factor here. It is the critical factor that began the process of this collapse. That's what failed.
It hasn’t been determined exactly what actually caused the bridge to collapse during rush-hour traffic. A final report by the NTSB will likely come by fall of this year. As you will recall, the Minneapolis span was a steel-deck truss bridge that opened in 1967. The bridge was called "fracture critical," or lacking redundancies, meaning that a failure of any number of structural elements would cause the entire bridge to collapse.
The NTSB can’t discount the possibility of similar errors in other like bridges. States and contractors must look at the original design calculations for such bridges before they undertake "future operational changes." The NTSB issued a safety recommendation to the Transportation Department's Federal Highway Administration suggesting that the agency require bridge owners to do so. Transportation Secretary Mary Peters called on states to calculate how changes in bridge weight, capacity, or evolving bridge conditions will affect gusset plates. It’s essential to find and correct any similar problems.
Structural weight had been added to the Minneapolis bridge in two major renovations, in the 1970s and 1990s. When the weight was added, the margins of safety were reduced to where they didn't exist. Construction materials on the bridge the day it collapsed, which were part of a resurfacing project, added about 300 tons and were on the same side where failure of the bridge began.
The Minneapolis bridge was deemed "structurally deficient" by the federal government as far back as 1990, and the state's maintenance of the structure has been questioned. The NTSB investigation has found no evidence that cracking, corrosion, or other wear "played any role in the collapse of the bridge." Investigators also found no flaws in the steel and concrete material used in the bridge. The bridge was originally designed by Sverdrup & Parcel, a company acquired in 1999 by Jacobs Engineering Group Inc. of Pasadena, Calif.
Source: Associated Press

Alabama Highway Officials To Review Three Bridges
State highway officials in Alabama are busy reviewing the gusset plates on the state's three deck-truss bridges. Tony Harris, a spokesman for the Alabama Department of Transportation, told Associated Press that an "engineering review" of the bridges started last month. The three Alabama bridges with designs similar to the Minneapolis bridge span the Tallapoosa River on Alabama 14 in Tallassee, the Coosa River on Alabama 22 in Chilton County, and the Tennessee River on U.S. 43 in the Shoals area in north Alabama.
Because other similarly designed bridges may have the same flaw that led to the Minnesota bridge's collapse, it’s essential that all bridges in our state with this design be checked. In Alabama, the Tennessee River bridge in the Shoals is the only one of the three that has four lanes of traffic. The others carry two lanes of traffic. State transportation officials haven’t been able to say how thick the gusset plates were on the Alabama bridges because they are so old. ALDOT Director Joe McInnes told The Birmingham News:
Without going into the bowels of design files, no one can tell me the thickness of the respective gusset plates. But we will be overly diligent and follow any and all recommendations for review, inspections and testing of our bridges.
It’s good to see ALDOT waste no time in checking Alabama bridges for potential structural problems. This is obviously a most serious safety concern. Hopefully, any defective bridge can be identified and corrective work that’s needed.
Source: Associated Press

Dump Truck Collision Results In A $15.7 Million Verdict
A jury has awarded $15.7 million to a San Diego, California, man who sued the city of Los Angeles after he was struck by a city-operated dump truck while riding his motorcycle in Northridge, California. The case was filed by Barry Bowman, a 62-year-old retired police officer who suffered brain injuries as a result of the accident. Bowman, a security guard who worked on film shoots, was struck by a dump truck operated by a trucking company that had been hired by the city's Bureau of Street Services to haul asphalt. The city contended that the truck driver had finished his work for the day and was "off site" when the collision occurred. There was a dispute at trial over the speed of the truck. The plaintiff’s evidence was that the dump truck was going 14 mph but the city claimed the speed was only 2 mph. Mr. Bowman, a 24-year veteran of the Los Angeles Police Department, suffered short-term memory loss and now requires 24-hour care as a result of the accident. The jury verdict included $4.7 million to cover the plaintiff’s medical costs and lost wages and $11 million for pain, suffering, and emotional distress.
Source: Los Angeles Times

A Highway Crash Results In A Verdict Against A California City
A $50 million settlement has been reached in a lawsuit against the city of Dana Point, California. Carol Daniel and Stacy Neria, who were critically injured after a hit-and-run accident on a Pacific Coast highway in 2006, agreed to the settlement. On April 8, 2006, a motorist struck Carol Daniel, Diana McDonald, Stacy Neria and Margaret Senske as they ran along the highway. Fortunately, McDonald and Senske were only shaken up, but Ms. Daniel and Ms. Neria were left quadriplegics. The City of Dana Point agreed to pay the two women $50 million to settle their lawsuit. It was contended the bicycle lane in which they were running was too wide and could be confused as a regular traffic lane. The city contended the motorist was totally responsible for the accident. The maximum amount of coverage under the city’s four insurance policies will pay the full amount of the settlement. Carol Daniel was a one-time professional volleyball player. The two women, both once-active mothers of three, are now confined to wheelchairs and require 24-hour attention. The women’s future medical care is expected to cost more than $30 million. Their husbands had to quit their jobs to take care of their wives. Daniel Callahan of the firm Callahan & Blaine, located in Santa Ana, California, represented the plaintiffs.
There had been a previous accident in 2002 that had put the city on notice and was damaging to the city’s defense. The 2002 accident, which showed the bicycle lane was wider than state standards and not properly marked with signs and painted pavement, clearly increased the city’s exposure. The motorist testified in a deposition that he thought he was in a proper lane when he hit the women. The motorist, who had three earlier drunk-driving convictions, abandoned his car less than a mile from the accident and fled. He was arrested nine days later, charged with hit-and-run, and subsequently sentenced to four years in prison. The accident could have been prevented if the city of Dana Point had done normal maintenance to the bicycle lane. Had signs been put up –pavement markings put in – had the city listened to the testimony of an expert in 2002 – this accident most likely would have never happened. Interestingly, barriers were put up to create a separate lane on the ocean side of the route after two more accidents occurred.
Source: San Clemente Times

Verdict In Favor Of Keith Family In Wrongful Death Suit
Toby Keith, his mother and his siblings have been awarded $2.8 million in damages in the 2001 collision that killed the country music star's father. A jury returned the verdict against Elias Rodriguez and Pedro Rodriguez, operators of Rodriguez Transportes of Tulsa, and the Republic Western Insurance Co. According to evidence presented at trial, a charter bus owned by the Rodriguezes was "in urgent need" of brake repairs before H.K. Covel was killed in the March 2001 accident on Interstate 35. The Rodriguezes had been advised of the brake problem before Covel's truck crossed the center median and struck the bus.
The family initially suspected Mr. Covel had suffered a medical condition that caused the truck to veer out of control, but it was later learned another vehicle had bumped his truck. The plaintiffs included the widow, Carolyn Covel, daughter Tonni Covel and sons Toby Keith Covel and Tracey Covel. It was proved that Mr. Covel would not have died if the bus had been equipped with properly working air brakes. The jury returned a verdict, which not only found the bus company at fault, but also found Mr. Covel totally free of fault.
Source: Associated Press

Proposed Legislation Would Ban Text Messaging By Drivers
The death of a Massachusetts teenager in December has prompted new calls to ban text messaging while driving a motor vehicle. Craig Bigos was sending a text message to a friend when he swerved and struck the 13-year-old, who was riding his bicycle along the side of a road. Bigos left the scene after the accident, but later turned himself in. At least two bills pending in the Massachusetts Legislature would ban the use of hand-held cell phones while driving. Several lawmakers say they would consider adding to those bills a provision specifically dealing with text messaging, others file a separate bill to ban text messaging while driving. This fatality is a tragic example of what can happen when drivers become distracted. In my opinion, text messaging by drivers should be banned in all states.
Source: Standard Times

CSX Fined For Safety Violations
The federal government has fined CSX Transportation Inc. about $350,000 for several violations of rail safety regulations. Following a series of serious train accidents and other incidents in December 2006 and January 2007, the Federal Railroad Administration conducted safety oversight inspections across CSX's network. The incidents included two separate occasions of CSX employees being struck by trains, and derailments in East Rochester, New York; Woodstock, Maryland; Cheektowaga, New York; North Baltimore, Ohio; and Brooks, Kentucky. The Brooks derailment forced the closure of a 23-mile stretch of Interstate 65, causing difficulties for tractor-trailers trying to reach the United Parcel Service Inc. hub at Louisville International Airport. Smoke from the fire caused by the derailment also caused the airport to close two runways and required residents and businesses in the area surrounding the wreck to evacuate because of hazardous fumes.
The federal rail safety violations were uncovered during a 23-state inspection last year. A system-wide FRA inspection in January 2007 found 3,518 safety defects, including 199 serious violations. Federal rail safety officials believed the company was not doing enough to address safety problems. The government decided to pursue civil penalties in 166 of the 199 serious cases. In a prepared statement, Federal Railroad Administrator Joseph Boardman said:
CSX has made significant strides in the short term to lay new rail, increase its own inspections of track and equipment and install trackside detection systems in more locations to identify potential problems early, but the company must stay focused and not be distracted from making the necessary long-term investments in infrastructure, technology and employees that will strengthen its safety culture and performance.
The $349,265 in penalties settled 141 of the violations, but the other 25 cases remain open. The fines were not in response to any one specific accident, but addressed the series of accidents involving CSX. As you may know, CSX, which is based in Jacksonville, Florida, operates a 22,000-mile rail network, covering 23 states, the District of Columbia, and two Canadian provinces. Based on this report, it appears that this railroad needs to get serious about safety.
Source: Insurance Journal


***ENVIRONMENTAL CONCERNS

Appeals Court Upholds Ruling Against ADEM On Permit Challenge
The Alabama Court of Civil Appeals has upheld a ruling in favor of two environmental groups that had challenged a permit the state environmental agency granted for mining operations in Tuscaloosa County. The court turned back separate appeals filed by the Alabama Department of Environmental Management (ADEM) and Tuscaloosa Resources, Inc., the company which had sought the permit. An excellent ruling in 2006 by Montgomery County Circuit Judge Truman Hobbs Jr. had struck down the Alabama Environmental Management Commission's decision approving a pollutant discharge permit that ADEM has granted to Tuscaloosa Resources. An administrative law judge had recommended that the Commission, which oversees ADEM, overrule ADEM's decision to issue the permit, but the Commission in February 2004 voted 4-1 in support of ADEM's action. Friends of Hurricane Creek, along with Alabama Rivers Alliance, subsequently sued the environmental agency. The appeals court upheld Judge Hobbs’ ruling and that was a tremendous victory for environments.
At issue in part was whether the North Fork of Hurricane Creek in eastern Tuscaloosa County already failed state water quality standards and was off-limits to further degradation by new sources of pollution. Although the Environmental Management Commission (AEMC) had concluded there was no evidence the quality of the water had been degraded, the appeals court said it was compelled to agree with Judge Hobbs' determination that AEMC's finding was "clearly erroneous." In that regard, the appeals court said: “The overwhelming evidence in this case indicates both that the North Fork is impaired and that TRI's mining will contribute to that impairment.”
This is a tremendous victory for those who want to protect the environment in the State of Alabama. ADEM failed to prove Tuscaloosa Resources Inc.’s coal mine permit complied with federal Clean Water Act standards for a 303 (d) listed stream. It’s difficult to understand how the Commission could have ruled as they did.  Edwin Lamberth, the lawyer for the winning side, did a very good job. This is a huge precedent-setting decision for all 303(d) listed streams. Congratulations to all who were involved in making this win possible. Hopefully, the coal mining industry in Alabama got the message. ADEM needs to right its ship, as does the Commission, and protect the environment in Alabama.
Source: Associated Press

Rules Not Followed In Change On Toxics
A new congressional review says that federal regulators ignored their own rules in deciding to reduce information to the public about industrial chemical releases. In making a major change to the Toxics Release Inventory in 2006, the U.S. Environmental Protection Agency, according to the Governmental Accountability Office report, "did not follow key steps ... designed to ensure that it conducts appropriate scientific, economic and policy analyses" before taking action. The report by the GAO, the watchdog arm of Congress, also states that the EPA probably overstated the amount of money that industries would save because of the lessened reporting requirements.
Under the change, companies in many cases no longer have to say how much of a particular chemical they release into the environment if the total does not exceed 2,000 pounds annually. The previous threshold had been 500 pounds. It’s not clear exactly how many Alabama firms have taken advantage of the new rule. Earlier this year, the GAO estimated that 69 facilities in the state that filed more detailed disclosure reports in 2005 would no longer have to do so. The EPA has defended the rule change as part of a broader strategy to streamline the toxics program while encouraging businesses to continue to reduce discharges. The EPA claims the toxics database – and the publicity accompanying it – has caused polluters to reduce emissions voluntarily. I strongly disagree because relying on voluntary compliance by corporations that pollute the environment simply doesn’t work. Regulation requires strong regulators who do their job effectively to keep the polluters in line.
In November of 2006, Attorneys General for New York and 11 other states filed a federal lawsuit seeking to overturn the changed reporting requirement. Alabama was not among them. There is also an effort in Congress that would accomplish the same goal. Led by lawmakers from New Jersey, members of both the House and Senate are pushing the legislation. But, it appears neither measure is close to final passage. The EPA should follow its own rules, and Congress has a duty to make sure it does.
Source: Mobile Press Register

California Sues Government For Rejecting Bid To Curb Emissions

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California and 15 other states have filed suit against the Bush Administration in an attempt to overturn a federal decision in December rejecting the state's bid to curb greenhouse gases from cars and trucks. The lawsuit, filed in the U.S. Court of Appeals for the Ninth Circuit in San Francisco, is the latest round in the struggle between California and the federal government over whether states have the power to regulate carbon dioxide and other pollutants that cause global warming. The controversy, which has been going on for five years, also spilled into Congress. Senator Barbara Boxer (D-CA) and Rep. Henry A. Waxman (D-Beverly Hills) are holding hearings on whether the White House and automakers influenced the Environmental Protection Agency's decision, which was required to be based on scientific and legal grounds.
Under the federal Clean Air Act, California is allowed to enact stricter air pollution laws than the federal government as long as the state is given a waiver from the EPA. Waivers have been routinely granted in roughly 50 cases during the last three decades, allowing the state to lead the way in requiring catalytic converters, unleaded gasoline, and other means of pollution reduction. But in a December 19th letter to California Governor Arnold Schwarzenegger, EPA Administrator Stephen L. Johnson denied a waiver for the state's landmark 2002 law, which seeks to cut greenhouse gas emissions from new vehicles by 30% over the next eight years.
Governor Schwarzenegger, the state Attorney General, and other state officials were joined by five national environmental groups in the lawsuit. The governor calls the EPA decision "unconscionable" and says the EPA is “ignoring the will of millions of people who want their government to take action in the fight against global warming.” The outcome of the court battle may hinge in part on whether California can show that its greenhouse gas law would reduce emissions more than the new fuel-economy standard -- which sets a fleet-wide average of 35 mpg for cars and light trucks by 2020.
The EPA claims California's standards would amount to only a 33.8 mpg equivalent. Calculations by California not only disputed the EPA's fuel-efficiency estimate, but also concluded that the state’s rules would achieve twice the greenhouse gas reductions expected under the new federal mpg standard. It will be up to the courts to sort out the numbers once the EPA produces its backup studies. The agency has yet to publish the extensive documentation normally provided in the Federal Register, although it has agreed to release all relevant documents to congressional committees.
Nationwide, passenger vehicles generate about 20% of carbon dioxide emissions. In California, the proportion is about a third. Leading scientists worldwide have said that global carbon dioxide emissions must be cut by about 80% by mid-century if the worst effects of climate change are to be avoided. If something isn’t done soon, we will have rising seas, melting snowcaps, spreading deserts, and widespread species extinction. California is particularly concerned about water shortages if seawater overwhelms levees and the Sierra Nevada snowpack melts. The 15 states joining California in the lawsuit are Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. Hopefully, this effect by the states will be successful.
Source: Los Angeles Times

TCE Is Linked With Cancer And Other Health Problems
Residents of Myrtle Beach, South Carolina, are finally getting information regarding the trichloroethylene (TCE) that is contaminating their groundwater. Although ATX Corp., the current owner of the site, knew of the contamination in 1981 and the state’s Department of Health and Environmental Control (DHEC) knew about the problem in 1995, local leaders and adjacent property owners weren’t informed until news reports exposed the contamination in November 2007. TCE has been linked with cancer and other health problems. However a spokesman for AVX has told residents the contamination doesn’t pose a health risk despite the migration of the toxin to a nearby 10-block neighborhood.
The toxin has entered the groundwater of the shallow aquifer, but the city does not use that aquifer as a source of water. Of immediate concern is the possibility of TCE vapors seeping through the soil and into local homes and businesses. These vapors are the most common way by which people are exposed to TCE and are particularly a problem with shallow aquifers like the one in Myrtle Beach. Further exacerbating the situation is the layer of clay found below much of the groundwater in the area. As TCE is heavier than water, the clay allows it to collect in pools. Not only does this create difficulties in cleaning up the area, but also TCE will breakdown into more toxic chemicals, including vinyl chloride, if allowed to remain immersed.
The DHEC is currently working to address any potential vapor issues. It has planned to test air samples in the contaminated area to assess any possible threats. However, groundwater readings of up to 19,200 parts per billion, well over the maximum safe level of 5 parts per billion, have the residents concerned. Gene Connell, a Surfside Beach lawyer, has filed a class action lawsuit on behalf of the property owners affected by the contaminated groundwater. An owner of land adjacent to the AVX site has also filed an independent lawsuit. The DHEC will release the results of the testing when they become available.
Source: The Sun News

Suit Accuses IBM Of Toxic Discharges That Caused Illnesses
More than 90 plaintiffs have filed suit against International Business Machines Corp., alleging the company discharged toxic chemicals and caused birth defects and other health problems for residents in and around Endicott, New York, where the company was founded. The suit, filed in a New York state court, revolves around an Endicott manufacturing plant IBM operated from 1924 until 2002. The suit alleges that the company used industrial solvents there through the years and "wrongfully, wantonly and recklessly" discharged them, contaminating local air, soil and groundwater. IBM claims the allegations "have no basis in science or law” and says it will defend the case “vigorously." This is the latest chapter of a long-running environmental dispute.
IBM began at Endicott, where it made printers, circuit boards, and other products. Since 2004, the company, which has worked to clean up groundwater contamination at the site, has paid out a total of $2.2 million to area residents for related reductions in their property values. Stephen Schwarz, one of the lawyers for the plaintiffs, says the vast majority of his clients didn't accept such property settlements and those that did are only making claims related to their health in the lawsuit. He says there are lots of people who have illnesses and who need help. IBM sold the plant in 2002.
In the suit, plaintiffs contended the pollution caused lymphoma, kidney cancer, and other serious maladies. Several parents maintain it caused congenital heart defects and other health problems for their children. Lawyers for IBM and the plaintiffs had been in settlement discussions since 2004, but those talks broke down and ended late last year. Interesting, one of the law firms representing the plaintiffs is Masry & Vititoe, the Westlake Village, California, firm that won a $333 million settlement in a water-pollution case against Pacific Gas & Electric Co. As you may recall, that case was the basis for in the 2000 film "Erin Brockovich," which brought the public’s attention to causes of this sort.
Sources: Wall Street Journal and Reuters

Lawsuit Linking Burlington Northern To Cancer And Birth Defects Goes To Trial
One of many lawsuits against Burlington Northern Santa Fe Corp. claiming a railroad tie factory poisoned residents in the small town of Somerville, Texas, causing cancer and birth defects, has gone to trial in Fort Worth, Texas. The suit was filed by Linda and Donnie Faust, two of the dozens of people living in the Central Texas town who have sued the Fort Worth-based railroad company over a railroad tie factory owned by a predecessor firm until 1995. The Fausts say creosote and other dangerous substances released by the factory helped cause Mrs. Faust's devastating stomach cancer. Donnie Faust has worked at the plant which is located near the Fausts' home since 1974.
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seeking at least $6 million in damages from BNSF Railway, a unit of BNSF. In their suit, the Fausts claim the operator of the railroad tie plant "knew the grave, and sometimes fatal, consequences to the plaintiffs and persons of the general public in and around the wood treatment facility." This lawsuit is one of multiple suits from Somerville residents against BNSF. Although the railroad has denied all of the allegations in this case, the company settled a claim with one former employee for an undisclosed amount.
Other Somerville residents are also targeting Koppers Inc., the company that now owns the factory. Koppers is a Pittsburgh, Pennsylvania, based producer of chemicals, carbon compounds and treated wood products. One of the lawsuits, which is seeking class action status in federal court, calls on BNSF and Koppers to pay to relocate the entire town of about 1,700 people. The plant still treats more than a million railroad ties a year. It’s significant that BNSF maintained control of the property after selling the plant. The railroad is cleaning up groundwater contamination, according to the Texas Commission on Environmental Quality. The Houston Press, a weekly newspaper, published a long article about Somerville's health problems. The article reported that:


  • Stomach-cancer rates in Somerville are far higher than the national average, according to a toxicologist retained by plaintiffs' lawyers.




  • Improper handling and disposal of hazardous substances were common at the factory, while safety training and equipment were scarce.




  • Some documents related to the plant's handling of dangerous substances are missing.




  • One longtime factory employee watched his uncle and brother die of cancer, and his granddaughter had serious birth defects, according to the article. The employee himself was diagnosed with cancer in 2006.

This trial will be closely watched and we will keep our readers advised as to further developments.


Source: Dallas Morning News

AIG Insurer To Pay $42.5 Million To Cleanup Sites Of Bankrupt Company
The American International Specialty Lines Insurance Co. Inc. (AISLIC) has agreed to pay $42.5 million to clean up contamination at four industrial facilities run by Fruit of the Loom, a bankrupt insured, in a lawsuit. The U.S. Department of Justice had intervened in the lawsuit on behalf of the federal Environmental Protection Agency (EPA) and other agencies. The EPA says the case is a reminder to insurance companies that they can be responsible for their bankrupt clients' contaminated sites. The four sites, formerly owned by Fruit of the Loom, are located in Michigan, New Jersey, and Tennessee. Granta Nakayama, assistant administrator for EPA's Office of Enforcement and Compliance Assurance, observed:
Insurers should take note that they may be liable for the cost of cleaning up their bankrupt clients' environmental messes. EPA will keep pursuing companies who pollute the environment.
This settlement will help clean up contaminated sites in Michigan, New Jersey, and Tennessee. The action is said to demonstrate the Justice Department's “commitment to pursuing those who pollute or those who inherit their clean-up obligations, whether through insurance arrangements or other agreements."
Fruit of the Loom filed for bankruptcy in 1999 and the court set up two trusts to receive and distribute the company's remaining assets, including its environmental insurance policies. The trusts subsequently tried to collect environmental cleanup costs from AISLIC, a member company of AIG Insurance, under the insurance policy that covered response costs and natural resource damages under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). AISLIC denied coverage and then brought a suit seeking to confirm that it was not obligated to pay the trusts for these costs. Under the settlement agreement, AISLIC will make an initial $30 million payment plus interest from May 15, 2007 and ten annual payments of $1.25 million to the Fruit of the Loom trusts, according to the EPA.
Source: Associated Press

Rancher Wins His Land Damage Case
A federal jury in Tulsa, Oklahoma, awarded nearly $200,000 to an Osage County landowner who alleged three local oil and gas companies damaged his property. Don Quarles sued Spess Oil Co., the Little River Energy Co., and the Yarhola Production Co. The jury ordered Spess to pay $100,000 in actual damages and $67,500 in punitive damages to the plaintiff. The jurors found that Spess acted in reckless disregard toward the rights of others, which justified the punitive damages award in the trial against the Cleveland, Oklahoma, company. The jury also ordered that Little River Energy Co. and Yarhola Production Co. each pay $15,000 in damages. The panel didn’t find that Little River or Yarhola showed reckless disregard toward the rights of others, so the two Drumright companies were not subjected to the punitive damages phase. Gentner Drummond, a lawyer from Tulsa, Oklahoma, represented the rancher. He says this case has established that Osage County landowners can successfully pursue any similar claims in court instead of relying on the arbitration process.
The lawsuit, originally filed in 2000, blamed eight oil companies and as many as 1,000 unidentified producers for oil wastes and other pollutants that allegedly have migrated into the Arkansas River, Skiatook Lake, Keystone Lake, Birch Lake, groundwater, surface water, and Osage County ranch land. The plaintiffs initially sought a class action status for the suit, but that request was withdrawn after it became apparent a judge was unlikely to grant it. The judge granted the summary judgment motions of several of the original defendants, leaving only Spess, Little River, and Yarhola in the case.
Source: Associated Press

Mining Company To Pay $20 Million EPA Fine
One of Appalachia's coal-mining giants has agreed to pay a $20 million fine, which is the largest such fine ever imposed by the U.S. Environmental Protection Agency. An investigation found more than 4,500 instances in which mine runoff tainted nearby waters. Massey Energy Co., based in Richmond, Virginia, also pledged to make about $10 million worth of upgrades to prevent such violations and to clean up a West Virginia stream ravaged by mining-related pollution. It appears the penalty in this case was triggered by the scale of Massey's misconduct. Dirt, powdered coal, and metals leaked out of dozens of Massey-owned sites and into waterways in West Virginia and Kentucky for almost seven years. A years-long investigation had shown that Massey neglected environmental safeguards. Massey is among the top 10 coal companies in the country, and it dominates in central Appalachia, a region that includes Virginia, Kentucky, and southern West Virginia.
Source: Washington Post

High Court Won't Review Pollution Ruling
The Supreme Court has refused to intervene in a rather unusual case in which a Canadian company was held subject to the U.S. Superfund law for polluting the Columbia River in the Pacific Northwest. A federal appeals court ruled last year that Teck Cominco Ltd., based in Vancouver, British Columbia, could have to pay a share of an estimated $1 billion to clean up Lake Roosevelt, a 150-mile stretch of the upper Columbia River behind Grand Coulee Dam. The Columbia has been polluted for a century with heavy metals and black slag leaching downstream from Teck Cominco's lead and zinc smelter complex in Trail, British Columbia, which is 10 miles north of the U.S. border and about 135 miles north of Spokane. The company asked the justices to overturn the appeals court ruling, arguing that the Superfund law does not apply to a Canadian company discharging hazardous waste unless it "arranged" for the contamination to end up in the United States. The company says the pollution resulted from an "action of nature" — the southward flow of the river from Canada into the United States.
According to Solicitor General Paul Clement, who advised the court not take this case for technical legal reasons, the company discharged millions of tons of hazardous substances into the river just north of the border for 90 years. Under orders from provincial government regulators, Teck Cominco stopped discharging slag into the river in 1994 after Canadian studies showed the waste was toxic to fish and aquatic life. The U.S. Environmental Protection Agency last year reached a voluntary settlement with Teck Cominco to study the extent and seriousness of the contamination. The company will pay about $20 million for the study. The bottom line is that the Canadian company is subject to the superfund law.
Source: Associated Press



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