Kristen Lombardi stories from The Center for Public Integrity

Campus Sexual Violence Elimination Act headed for President's signature

2013-03-02T13:50:16-05:00

The House of Representatives passed federal legislation aimed at combating campus sexual violence on Thursday, including it in a bipartisan renewal of the Violence Against Women Act following months of congressional gridlock. The Senate has already approved the measure, which means passage is virtually assured; President Barack Obama could sign it into law as early as next week.

In a vote of 286 to 138, House members approved a reauthorization of VAWA that incorporates, as Section 304, the Campus Sexual Violence Elimination Act, known as Campus SaVE. The final tally came after lawmakers had defeated a Republican-backed amendment that would have omitted the act’s language from VAWA altogether.

Campus SaVE is meant to address problems highlighted in an investigation of campus sexual assault by the Center for Public Integrity. Published in a six-part series starting in 2009, “Sexual Assault on Campus: A Frustrating Search for Justice” — done in collaboration with National Public Radio — showed that campus judicial proceedings regarding allegations of sexual assault were often confusing, shrouded in secrecy, and marked by lengthy delays. Those who reported sexual assaults encountered a litany of institutional barriers that either assured their silence or left them feeling victimized again. Even students found “responsible” for alleged sexual assaults often faced little punishment, while their victims’ lives frequently turned upside down.

“The victims’ rights components [of Campus SaVE] were designed around the gaps identified by the Center for Public Integrity’s report,” said Daniel Carter, a long-time victims’ advocate now with the VTV Family Outreach Foundation, who helped draft the original bill. “This would not have been possible without that series.”

The legislation, first filed in the fall of 2010, will expand required campus education programs to include prevention awareness and bystander intervention strategies for students, meant to stop sexual assaults from occurring. The measure aims to improve victim protections by guaranteeing counseling, legal assistance, and medical care on campus, among other accommodations. It also will establish minimum, national standards for all schools to follow in responding to allegations of sexual assault and sexual violence. For instance, the act makes explicit that schools must afford both the alleged perpetrator and the alleged victim the same rights — access to advisers, written notifications, as well as appeals processes — during campus disciplinary proceedings.

The VAWA reauthorization passed the Senate on February 12, in a 78 to 22 vote. Following the House action, President Obama said in a statement that the VAWA represents “an important step towards making sure no one in America is forced to live in fear.” The president said he “look[s] forward to signing it into law as soon as it hits my desk.”

Campus SaVE will technically take effect one year after the president signs the VAWA reauthorization, but as a practical matter, its effects will first be felt at the start of the 2014-15 school year, when colleges and universities have to release their annual campus-crime reports.

Victim advocates, who have pressed for Campus SaVE’s passage for months, say they are stunned — and delighted — by the sudden passage of the Violence Against Women Act, following weeks of legislative stalemate. Many of them were walking the halls of Capitol Hill earlier this week, talking with anybody who would listen about the bill’s virtues. On Tuesday, Rep. Carolyn Maloney, a Democrat from New York, re-introduced Campus SaVE on the House side. That same day, House Minority Leader Nancy Pelosi held a press conference about the Senate version of the VAWA reauthorization, urging House members pass that legislation in its existing form —and that’s what happened.

Laura Dunn, whose case was featured in the Center series, spoke at the Pelosi event about her experiences in 2005, detailing how her allegations of rape by a crew member at the University of Wisconsin-Madison took the university nine months to investigate, before deciding against filing disciplinary charges against her alleged attacker. “I requested House members please pass VAWA,” she said. “I wasn’t expecting it to happen in a couple days.”

Dunn and other advocates say Campus SaVE will improve the lives of student victims, providing a smoother process for them to report allegations and to appeal. They applaud its requirements for schools to publicly disclose incidents of sexual assault on campus, as well as to publish policies on sexual assault. The legislation will also codify some crucial components of the Education Department’s first-ever federal guidance on how schools must respond to student complaints of campus rape, issued in April 2011.

“This gives me a lot of hope things will change,” Dunn adds.

Lawmakers also hailed its passage. In a brief statement, Maloney, the bill’s House sponsor, said, the legislation “will help students, administrators and the public.” She noted that college administrators will now benefit from guidance on best practices from the departments of Justice and Education, while the public will benefit from the disclosure of incidents of sexual assault, stalking, and dating violence on college campuses.

Her Senate counterpart, Pennsylvania Democrat Robert Casey, Jr., said Campus SaVE will help “ensure that college campuses are safe and secure places to learn and work.”

The measure’s passage comes just one month after news that current and former students at the University of North Carolina have urged the Education Department’s Office for Civil Rights to investigate the university. The group, including Melinda Manning — the school’s former assistant dean of students and an alum — filed a complaint with the civil-rights office in January, alleging the university has violated the rights of assault victims and created a “hostile environment” for them on campus. The complaint also accuses officials of pressuring Manning to under-report sexual assault cases. One of the students, Landen Gambill, whose allegations of rape by another student were dismissed by a student-run judicial board last year, now faces disciplinary charges herself for speaking out about her case.

The UNC case has quickly made headlines, prompting the school to create a website, “Campus Conversation on Sexual Assault,” where it has posted its policies on the topic. In response to the 2011 federal guidance, the university has rewritten its procedures for campus rape probes since Gambill’s case last year. Today, it no longer allows its student-run disciplinary board to decide such allegations.

In a statement, the university denied the current disciplinary charges against Gambill represent any retaliation for filing the civil-rights complaint. The school, it said, has never tried to discipline a student for reporting sexual violence.

“This University works hard to encourage students to come forward and report instances of sexual violence,” the school said. “We are committed to eliminating sexual assault and violence from our community.”

“We need to recognize there is quite a large battle ahead,” said Dunn, referring to the UNC case. “But this is a great first step, and we should take a moment to celebrate it.”

As EPA delays new coal ash rules, residents turn to the courts for relief

2013-02-22T11:04:38-05:00

Sabrina Mislevy is tired of the odors, the way they “hit” her as she drives by the blue-tinted lake, the way they burn her nose. Like many of her neighbors, Mislevy has grown weary of living near the nation’s largest coal ash pond, Little Blue Run, which straddles the Pennsylvania, West Virginia and Ohio state lines.

In Little Blue Run and beyond, coal ash, waste from the production of electricity, has fouled water supplies and endangered public health. “We want action,” said Mislevy, of Georgetown, Pa., explaining why she has joined some 200 other area residents in launching legal challenges against FirstEnergy Corp., the owner of Little Blue Run.

Her community is just one across the country pursuing legal challenges against coal-ash ponds, landfills and pits — a grassroots onslaught stoked, in part, by slow regulatory action by the Environmental Protection Agency.

Last May at Little Blue Run, residents laid the groundwork for a potential citizens’ suit against FirstEnergy, sending a notice of intent to sue. Calling themselves the Little Blue Regional Action Group, they accused the company of operating its 1,000-acre ash pond “in a manner that may present an imminent and substantial endangerment to human health and the environment.” In December, residents sent another notice to FirstEnergy alleging “additional significant and ongoing violations,” including dirtying a creek that flows into the Ohio River with arsenic and selenium — toxic constituents found in coal ash.

A FirstEnergy spokesman, Mark Durbin, calls the residents’ claims “wholly without merit.”

The pending action and others come as the federal government weighs how to regulate coal ash, one of the nation’s largest refuse streams at 136 million tons a year. Two years after unveiling a plan to regulate coal ash disposal for the first time, the EPA has delayed the rules.

As the agency studies the issue, lawyers and citizens are filing toxic torts and regulatory appeals targeting specific ash sites. More than two dozen such challenges have surfaced in the past year, from Illinois to Nevada to West Virginia. Most of the litigation alleges unlined or partially lined dumps have leaked boron, uranium, chromium, thalium, manganese and other metals, tainting water sources and harming property and health.

“What we need is federal rules,” said Lisa Widawsky, a lawyer at the non-profit Environmental Integrity Project, who represents the Little Blue Run residents. “Until then, we’ll use whatever tools we’ve got.”

EPA Delay, Resident Lawsuits

Some places, like Montana, have encountered a history of litigation. Last fall, environmentalists filed two new suits over coal-ash ponds surrounding the town of Colstrip. There, the ponds have caused such widespread damage to aquifers that they fueled years of claims by residents and ranchers, The Center for Public Integrity reported in 2009. Other places, including Georgia, are witnessing their first coal-ash cases. Still others, such as South Carolina, have seen a wave of legal action targeting ash ponds, some leaching arsenic at levels 300 times safety standards.

“We didn’t want to wait for EPA to act,” said Frank Holleman, who handles the South Carolina suits and who, working with colleagues at the Southern Environmental Law Center, has launched an initiative devoted to the issue.

In the Southeast, he explains, nearly every ash lagoon sits beside a river that serves as drinking water for residents. Yet each has some record of seeping the ash’s dangerous pollutants. “The problems are real,” adds Holleman, who has overseen eight cases in 12 months. “It’s an important time for somebody to start taking action.”

Environmentalists have even mounted a challenge to the EPA. Last April, on behalf of 11 other groups, Earthjustice sued the agency over its stalled process, seeking court intervention to force it to act. Under federal waste law, the groups argue, the EPA has a mandatory duty to review and, if necessary, revise rules every three years. But the agency has not done so for rules governing coal-ash disposal since 2000.

“We’ve seen a real uptick in legal actions over coal ash in the vacuum left by EPA,” said Lisa Evans, the Earthjustice lawyer suing the agency. “Despite inaction on the part of EPA, the damage keeps mounting.”

The EPA announced its proposal to begin regulating the disposal of coal ash in June 2010, presenting two alternatives in a 563-page draft. Under the first option, the agency would classify coal ash as “hazardous” — triggering a series of strict controls for its dumping. The second option would deem coal ash “non-hazardous,” and subject it to less stringent national standards that amount to guidelines for states.

Asked why a decision has yet to be made 32 months later, the EPA, in a one-paragraph statement, said it has received more than 450,000 comments on its proposal. “EPA is following long-established rulemaking procedures and requirements,” the agency wrote, and “will finalize the rule pending a full evaluation of all the information.”

In court records, the EPA maintains it cannot predict when that will happen. “It is not feasible, given the current state of the Agency’s knowledge, to propose a rulemaking schedule,” Suzanne Rudzinski, EPA’s director overseeing the process, said in a filing in the Earthjustice case.

Agency officials intend to consider new, unpublished data, gathered from 495 coal-fired power plants nationwide, for their rulemaking. Obtained by Earthjustice through a public-records request, the data shows hundreds more ash ponds and landfills than previously estimated: The total number of ponds rose more than 60 percent to 1,161, up from 710 in 2010. Imposing a court-ordered deadline to finish reviewing this information, the EPA’s Rudzinski argues, would be “neither scientifically sound, nor legally defensible.”

The utility industry, intervening in the case, echoes the sentiment. “We certainly want regulatory certainty,” said Jim Roewer, of the Utility Solid Waste Activities Group, “but we want to have a good rule that actually works.”

Many lawyers say that, if the EPA had already issued its rules, they would not need to sue now. In some cases, they say, contamination may never have happened.

Take the toxic torts pending in Chesapeake, Va., where a golf course constructed out of coal ash, recycled as “structural fill,” has leaked arsenic and uranium onto nearby properties. Or the notice-of-intent-to-sue letter sent over ash similarly used in about 36 construction sites in Puerto Rico. The EPA’s proposal would ban such un-encapsulated “beneficial uses” without proper protections.

For cases involving ash ponds and landfills, lawyers say, federal regulations would have at least stopped ongoing pollution. The EPA’s proposal features preventative requirements such as composite liners and regular monitoring at these sites. Its toughest option would prohibit wet ponds altogether, the same type of impoundment at issue in lawsuits filed on January 31 by 23 residents in Juliette, Ga.

The mass-tort litigation involves two ash ponds — one 750 acres; the other 300 — at the sprawling Robert W. Scherer coal plant, operated by Georgia Power Co. Residents allege the company’s coal ash has “invaded” their homes and exposed them to “extremely toxic and hazardous substances released to the air, soil, and groundwater.” They are suing Georgia Power and additional plant owners for negligence, nuisance and trespass, claiming the ash has made them sick.

Kristal Smith, one of the resident-plaintiffs, says she cannot see Georgia Power’s big ash pond from her yard, “but I know it exists.” Her lawn abuts the plant’s property line. For six years, she has witnessed what she suspects is coal ash: A grayish material often settles onto her porch, her car and her kids’ toys, turning them black.

More than a year ago, Smith, 35, noticed something even more troubling: Her hair was falling out. She changed shampoos and bought over-the-counter medication, but nothing helped. When her scalp grew “really, really red,” as she recalls, she went to a doctor, who performed blood tests. He has ruled out thyroid problems and vitamin deficiencies, but, she said, cannot explain her hair loss.

“It certainly crossed my mind that my hair loss was connected to the . . . coal ash,” said Smith, who uses a steroidal shampoo to stop the thinning. She has learned her next-door neighbor, a vibrant woman in her late ‘20s, has also lost her hair. Other neighbors suffer from a host of health ailments, according to the suits, including nosebleeds, lung cancer, muscle spasms, kidney abnormalities and reproductive problems.

Last year, the state conducted water tests at the community’s request, revealing uranium in the area’s groundwater. Brian Adams, the lawyer representing 100 total residents, says his own testing has shown “alarming” levels of arsenic, lead and boron in many drinking water wells.

Georgia Power disputes the contamination claims. In a two-paragraph statement, the company notes that its testing of drinking water at Plant Scherer, evaluated by state regulators in 2008, has confirmed local water supplies are “safe.” The state’s more recent tests, it wrote, “do not indicate that humans are being or have been exposed to levels of contamination that would be expected to cause adverse health effects.”

The company stresses it is in full compliance with federal and state regulations.

Yet those living near its coal-ash ponds “are really unprotected,” Adams said. Like the EPA, Georgia lacks stringent rules for coal-ash disposal.

In Greene Township, Pa., home to most of Little Blue Run’s 1,700 permitted acres, state regulators boast some of the country’s most comprehensive coal dumping rules. That has not stopped the contamination. In their first legal notice, residents rely on FirstEnergy’s data to allege “widespread” pollution in ground and surface water sources, tracing high levels of arsenic, boron and other toxic constituents to the pond. Their second notice hinges on several samples collected by a resident from a creek, which show pollutants at levels that can pose harm to fish or human health.

Durbin, the FirstEnergy spokesman, said the citizen issues raised “have historically been addressed and are continuing to be addressed by the Pennsylvania Department of Environmental Protection.”

Yet only after the threat of a citizens’ suit emerged did state officials act. Last summer, on the eve of a legal deadline, the state DEP sued FirstEnergy in federal court. The agency then filed a consent decree requiring closure of Little Blue Run. In its court filing, the DEP has characterized its agreement with the company as a proactive step to ensure the ash pond “will not create an imminent and substantial endangerment to health or the environment.”

Under the July 27, 2012, settlement, FirstEnergy must shutter its pond by the end of 2016, and pay an $800,000 fine. The company has agreed to increase its existing monitoring of area water sources; measure air emissions coming off the pond; identify any new seeps creeping off-site; and offer 22 residents an alternate water supply. A federal judge approved the consent decree last December.

Durbin, who describes the agreement as years in the making, suggests it renders moot any future litigation from the residents' second notice. “FirstEnergy takes its environmental obligations very seriously,” he said.

Environmentalists paint the Little Blue Run case as proof their lawsuits can fill the federal regulatory gap. Already, citizen suits have precipitated shutdowns of polluting coal-ash ponds in South Carolina, Maryland and Illinois. While some of these cases ended in settlements with utilities, others, as with Little Blue, prompted state regulators to act.

Such state actions, industry representatives say, show the current system for regulating coal-ash disposal is working. State regulators are doing their jobs, they say, tightening rules and going after problematic dumpsites. “The states aren’t waiting . . . for EPA and its rule to take action,” asserts USWAG’s Roewer.

The sentiment would likely rankle Sabrina Mislevy, who believes her “life would be easier if there were federal regulations.” For her and her neighbors, it does not matter that Little Blue Run will shutter in three years. They still must deal with its well-water contamination and rotten-egg stench. Some residents have grown so tired of living beside the ash pond, they are hiring lawyers and seeking buyouts from FirstEnergy in hopes of fleeing today.

As long as Little Blue Run remains open, Mislevy said, “The future is not bright.”

Notre Dame case highlights complexities of campus sexual assault investigations

2013-01-23T17:09:58-05:00

Notre Dame’s high-profile re-emergence among college football’s elite has focused new attention on the university’s long-standing claims that it does things “the right way” — that football players are treated like anyone else on campus, with no special favors.

The boasts of lofty moral standards have long struck other schools’ fans as a bit sanctimonious. But they are getting fresh scrutiny now, in part because the bright lights of college football’s biggest stage have brought renewed attention to a two-year-old case involving a Notre Dame player and chilling allegations of sexual assault.

In August 2010, 19-year-old freshman Lizzy Seeberg accused the athlete of sexually assaulting her in his dorm. She filed a report with campus police, which sat on it for two weeks before even interviewing him. By then, Seeberg had committed suicide. Administrators would later convene a closed-door campus disciplinary hearing—three months after Seeberg’s death became national news—in which the player was found “not responsible.” In the university's only direct comment on the case, Notre Dame's president, the Rev. John I. Jenkins, told the South Bend Tribune in December 2010 that university police had conducted a "thorough and judicious investigation that followed the facts..." He acknowledged, however, that the inquiry could have been conducted "more quickly, perhaps." The player, who has not been publicly identified, reportedly has never missed a game, nor presumably will he miss tonight’s national championship contest with Alabama’s Crimson Tide. Meanwhile, a small but vocal number of critics are asking pointed questions about how this case was handled, and wondering aloud whether Notre Dame’s righteous rhetoric is really a fiction.

As tragic as the details of the Seeberg case are, they are actually far from unusual. The struggles that colleges have faced in addressing campus sexual assault were the subject of an investigation by the Center for Public Integrity beginning in 2009. Published in a six-part series, “Sexual Assault on Campus: A Frustrating Search for Justice,” the investigation showed that campus judicial proceedings were often confusing, shrouded in secrecy and marked by lengthy delays, leaving alleged victims feeling like they were victimized a second time. Those who reported sexual assault encountered a litany of institutional barriers that often led to dropped complaints. Even students found “responsible” for alleged sexual assaults often faced little punishment, while their victims’ lives frequently turned upside down. Many times, victims dropped out of school — or worse — while their alleged attackers graduated.

The Center series — done in collaboration with National Public Radio — shed light on what Education Department officials have since called “an epidemic of sexual violence” on campuses. According to a report funded by the Justice Department, roughly one in five women who attend college will become the victim of a rape or an attempted rape by the time she graduates. Much of the problem is up to the institutions to address, because prosecutors face imposing obstacles in filing criminal charges; allegations come down to he-said-she said accounts that may be colored by alcohol, while physical evidence and eyewitness testimony are often lacking.

In April 2011, the Education Department’s civil rights office unveiled its most thorough guidance on how schools must respond to student complaints of campus rape. The 19-page “dear colleague letter,” combined with a unique enforcement strategy, has spurred change at dozens of schools nationwide, including Notre Dame. There’s also proposed federal legislation aimed at combating campus sexual violence.

The guidance hasn’t pleased everyone, and the legislation is, for the moment, stalled. Sadly, cases like Seeberg’s continue to make headlines. The latest comes from elite Amherst College, where a former student has documented allegations of her school’s callous treatment following an alleged rape by a classmate. Highly emotional, colored by broader cultural stereotypes, these cases remain among the thorniest for colleges and universities. Even so, lawyer Brett Sokolow, who advises college administrators, says he believes they have improved their handling of what he calls “the garden variety cases” — those without ties to money or influence.

But “the old rules still apply if [the alleged assailant is] a star athlete or a student president…Corruption still exists in those cases,” he says, while adding he’s not familiar with the details of the Seeburg case.

Changes

That new federal guidance, announced with fanfare by Vice President Joe Biden, says schools have an obligation, under the federal law known as Title IX, to investigate student complaints, and to take prompt and effective action to end harm.

The guidance has drawn fierce pushback, much of it focused on a policy the civil rights office was already enforcing: that schools should rely on the more lenient evidence standard in these cases — “preponderance of evidence” rather than the higher “clear and convincing” or even “beyond a reasonable doubt” evidence standards. Groups like the Foundation for Individual Rights in Education, which advocates for free speech and due process, have penned multiple letters arguing that such a “weak” principle undermines, in its words, “the reliability, integrity and basic fairness of the disciplinary process.”

“We see the burden of proof on many campuses being the only protection an accused student has,” says FIRE’s Joe Cohn, whose last letter, in May 2012, included 19 professors, lawyers and other individuals as co-signers.

Taking a cue from the department, many colleges and universities were using the preponderance standard when the guidelines came out. Others have followed suit. Some 40 schools at last count have also adopted what administrators describe as “the easy things” — policy reforms and procedural fixes like hiring a Title IX coordinator and offering appeal rights to both the accused and accusing students. Some administrators are even clamoring for more guidance to clear up lingering “confusion” about what Title IX requires.

By all accounts, the civil rights office has become far more aggressive since December 2010, when it announced its first in a series of “model” settlements with schools regarding policies on campus sexual assault. These settlements have emerged from “compliance reviews” that were pushed by the Education Department’s assistant secretary for civil rights, Russlynn Ali, who stepped down in early December. Unlike formal complaints, which students must file before the office can act, these compliance reviews have allowed the department to act proactively in response to allegations of campus sexual violence.

To date, there have been 11 such reviews — and the first one was at Notre Dame. Prompted by the Seeberg case, the civil rights office launched a seven-month investigation into how the school handles all sexual assault complaints. That ended in June 2011 with a “voluntary resolution agreement,” in which Notre Dame agreed to speed up investigations, adopt the “preponderance” standard, and issue no-contact orders for alleged assailants and their alleged victims, among other things. Seth Galanter, the civil rights office’s acting director, declined to discuss the Notre Dame resolution, citing its “open” status. The office is currently monitoring the school to ensure its compliance.

Many of the reviews are ongoing, but the office has hammered out similar settlement agreements with such schools as Eastern Michigan and Yale. Last spring, it took the rare step of joining the Justice Department in examining how the University of Montana, as well as local law enforcement, handle campus rape allegations — after several prominent cases there, some involving football players. The civil rights office has even seen the number of formal complaints from students filed against schools soar to more than 120 in the past four years— a rise of more than 41 percent.

“One of our goals,” Galanter says, “is to make sure the April 2011 ‘dear colleague’ letter isn’t just a piece of paper.”

A multi-front struggle

Over on Capitol Hill, victim advocates have pressed for passage of the Campus Sexual Violence Elimination Act. Filed in the fall of 2010, the federal legislation was meant to codify the Title IX guidance, creating minimum, national standards for colleges and universities. Two years later, after lobbying by FIRE and others brought about changes in the bill, some supporters now actually oppose it. The most notable change: the bill would no longer require schools to use the “preponderance” standard.

“Now we have this monstrous bill all wrapped up in nice sounding language,” says lawyer Wendy Murphy, a prominent victim advocate. She believes the bill, stripped of that mandate, would give institutions leeway to use a higher burden, thus in her view undermining the guidance.

Bill supporters counter that the SaVE Act would still require that institutions expand programs to offer prevention awareness and bystander intervention education, meant to stop sexual assaults from occurring. And the legislation would improve victim protection, they say, by guaranteeing counseling, legal assistance, and medical care on campus, as well as other accommodations.

“We didn’t get everything we wanted,” agrees Daniel Carter, a long-time victim advocate now with the VTV Family Outreach Foundation, who helped draft the original bill. But “no one was willing to sacrifice [the whole measure]” he explains, to preserve a few of its mandates.

Administrators and advocates alike expect the legislation to pass — eventually. It had been incorporated, as Section 304, into the Senate’s re-authorization of the Violence Against Women Act, but not the House’s. Advocates were pinning their hopes on the bill making it in the final version of VAWA until the House let it expire at the end of the congressional session on January 3. Now, it will have to be re-introduced, as will the stand-alone version of the bill. Its sponsor, Senator Robert Casey Jr., a Democrat from Pennsylvania, will keep working to ensure final passage of the Campus SaVE Act in the 113^th Congress, his office says.

For all the attention on campus sexual assault, it remains an intractable and complex problem. The cultural climate surrounding these cases is tense— especially those involving athletes. They are, after all, popular public figures who may be pivotal to the reputation and success of a school’s highest-profile programs.

It all feels painfully familiar to Laura Dunn, whose case was featured in the Center series; in 2005, she reported her allegations of rape by a crew member at the University of Wisconsin-Madison. He denied the allegations. It took the university nine months to contemplate, and then reject, filing disciplinary charges against him.

“It’s almost like you’re attacking something bigger than the individuals who assaulted you,” Dunn says. When she thinks about how much progress colleges have made in combating campus sexual assault, her thoughts turn to Lizzy Seeberg and that Notre Dame football player.

“Until college athletes are handled differently,” Dunn says, “nothing has changed.”

BP engulfed in lawsuit over 40-day Texas flare

BP Plc — 2012-12-05T06:00:01-05:00

By now images of the April 2010 Gulf oil spill are indelible: The rig engulfed in smoke, oil gushing into the ocean, beaches stained on the coast. These images defined the largest environmental disaster in U.S. history — and sealed BP PLC’s reputation as a corporate polluter.

But two weeks before the Deepwater Horizon rig exploded, killing 11 workers and spewing millions of gallons of oil into the Gulf of Mexico, BP was spewing a different kind of pollution — in a major case that has received far less attention.

This case involved dirtying the air around its refinery in Texas City. Throughout most of April and May of 2010, the Texas refinery belched massive amounts of pollutants — toxic chemicals including benzene, toluene and hydrogen sulfide — from a towering flare designed to burn only during emergencies. The single “emissions event,” as BP reported it to the state, triggered by an equipment breakdown, lasted 959 hours and 30 minutes — or 40 days.

“The release went so long,” said Bruce Clawson, of Texas City’s emergency response division, which tracks such incidents. “We’ve never had a release go that long before.”

Now two years later, with the Gulf spill legal maze including $4.5 billion in fines, corporate guilty pleas to 14 criminal charges and an Environmental Protection Agency ban of the company from new government contracts, the so called “40-day Release” case churns slowly ahead, with a $500 billion lawsuit pending in Texas District Court.

Overshadowed by the spill, this litigation is also proving tangled for BP. As many as 47,830 residents, plant contractors, and nearby workers — more than the population of Texas City — are suing BP in multi-district legal proceedings based on “symptoms classically associated with exposure to benzene and other toxic chemicals that have been released by BP,” the suit alleges. Symptoms range from headaches and dizziness to nose bleeds and sore throats, mostly suffered in the immediate aftermath of the leak, their lawyers said.

BP disputes those contentions. In a six-paragraph statement to the Center for Public Integrity, the company downplayed the severity of the emissions, pointing out that neither its own fence-line monitors nor ambient air monitors stationed throughout Texas City detected elevated levels of benzene or other chemicals.

“We do not believe that any negative health impacts resulted from flaring at BP’s Texas City refinery during this period,” BP said.

To environmentalists, the legal case carries deep significance.

“This case is huge,” said Matthew Tejada, of the environmental group Air Alliance Houston. Too often, he contends, refiners calculate that it’s cheaper to pay a fine than to make long term fixes. He calls it “the cost of doing business in Texas.”

If plaintiffs successfully hold BP accountable for the 40-day release, Tejada believes, “It’d be a sea change for the way that industry calculates its actions.”

Prompted by the incident, the EPA is now investigating whether BP’s flaring techniques, in general, comply with the federal Clean Air Act.

The 40-day flare

On April 6, 2010, a fire erupted inside the “100-J” compressor in the Texas City refinery’s ultracracker unit. Sparked by a seal failure, the flame forced engineers to shut down what amounts to a crucial pollution-control device. Rather than stop production to make repairs, managers opted to burn off the gases through an emergency flare. It lasted 40 days.

By May 16, when the flaring stopped, the refinery had pumped out at least 513,795 pounds of more than 20 distinct chemicals — including 17,372 pounds of benzene, 37,520 pounds of nitrogen oxides, and 190,866 pounds of carbon monoxide, BP informed the state that June.

“A conscious decision was made to flare knowing it was against the law and contrary to the operating permit,” asserts Tony Buzbee, liaison counsel for the plaintiff steering committee, who has taken 50 depositions of BP executives so far.

BP notified the state of an emissions event the day after it began, on April 7, as required by law. Texas City residents only learned of the 40-day release after the fact. Clawson, the city’s emergency response chief, remembers getting a phone call from a BP press officer around the time the company filed its final report; the officer told him the event had lasted a month, and caused some exceedances.

“Telling us after the fact is not really helpful,” said Clawson, who believes he would have classified the leak as a “level three” — the highest alert — because it was, in his words, “impacting us severely.”

“Obviously,” he explains, “they exceeded the state standards reported. It’s logical to assume it impacted the city.”

Just how much BP surpassed the standards has become a central issue in the lawsuit. Plant supervisors calculated air emissions released during the 2010 event by assuming the flaring had destroyed 98 percent of the pollutants, a regulatory requirement. Lawyers for the plaintiffs are challenging that rate and citing a 2007 study by government regulators on “difficult to measure” emissions sources at the Texas City refinery.

In 2007, BP had allowed state and federal regulators to conduct an advanced form of emissions testing on three of its refinery flares and other pieces of equipment. The EPA found that one of them — the ultracracker flare — burned pollution at a rate “considerably worse than expected.” In some instances, the EPA found, the actual emissions from the ultracracker flare during the testing turned out to be six times greater than the amount reported by BP.

By BP’s own accounting, the ultracracker flare ended up spewing almost 98 percent of all the pollution in the 40-day release.

“That means BP under-calculated its emissions,” contends Jim Tarr, a chemical engineer hired by lawyers for the plaintiffs. He said the difference between an efficiency rate of 98 percent and one of 50 percent, the lowest rate EPA found, can translate into orders of magnitude — 25 times more for any single component.

“That’s not a tiny difference by any stretch of the imagination,” Tarr adds.

BP defends its calculations. In its statement, the company said the poor performance of the ultracracker flare occurred only “at very low flow rates, conditions not normally seen in refinery operations,” which differ from those of the 40-day release. After the regulators’ study, BP said, engineers calibrated the flare’s instruments and subjected it to “performance testing.” Passing those tests, the flare went back into service in 2009.

“We have multiple bases for concluding that the flared hydrogen steam was well combusted (with greater than 98% efficiency) during the April/May 2010 flaring event,” BP wrote.

Yet internal company emails obtained through discovery in the lawsuit show that, in the months before the refinery’s release, BP’s environmental team was still discussing the ultracracker flare’s “poor destruction efficiency,” as measured in the 2007 tests.

One BP environmental specialist, in an April 8, 2009, email, cited the flare’s “old flare tip design” as a possible reason. Three months before the release, in a January 4, 2010, email, the same specialist said “under low flare gas flow rate conditions … combustion efficiency may be (significantly) below acceptable values.”

“They knew exactly what they were doing,” said plaintiffs’ lawyer John Powell.

Other company documents show the 100-J compressor long having problems. Internal BP emails note that employees made repeated requests to upgrade the compressor, to no avail. Some BP engineers lamented that their past recommendations had fallen on deaf ears.

“I wish the project people who had fought us and justified overruling us were still here today to feel our pain,” one engineer wrote on April 15, 2010. “I sure hope they get good bonuses for F#$%ing [sic] us over.”

“It just reminds me of a saying,” another employee replied. “‘The bitterness of poor quality will be remembered long after the joy of a low price is forgotten.’ ”

Six months before the release, those same emails reveal, the Texas City refinery experienced a strikingly similar flaring event, again sparked by the 100-J compressor. This emissions event lasted 28 days, from November to December 2009, and released almost as many toxic chemicals. Back then, the company reported spewing 54,312 pounds of pollutants into the air. In depositions, BP supervisors acknowledged under-reporting the release by more than 300,000 pounds.

BP declined to specifically address Center questions about the earlier emissions event, or about the emails gathered during the lawsuit.

Buzbee, the counsel in the leak litigation, believes the two events reflect a pattern of conduct that proves, in his words, “BP doesn’t give a rat’s behind.”

Regulators have also raised questions. In 2010, the Texas attorney general sued BP for multiple violations of the Texas Clean Air Act, alleging “a pattern of unnecessary and unlawful emissions events” at the refinery — 72 in all from 2005 until that year. When the 40-day release occurred, the AG’s office filed a second suit. Both enforcement cases pegged BP’s “poor operation and maintenance of the refinery” as the cause of the leaks. By November 2011, BP had agreed to pay a fine of $50 million to settle the cases.

The first bellwether case involving six plaintiffs, half chosen by BP, half by the plaintiff steering committee, is slated for trial in September 2013.

Lawyer Buzbee, who previously won a multi-million-dollar verdict against BP, predicts a legal tussle, perhaps ending in a settlement. “I don’t believe BP will allow me to try this case,” he adds.

The company, which intends to sell its Texas City refinery to Marathon Oil for $2.5 billion, said it will continue to fight the leak litigation. BP vows to “defend the lawsuits brought against it concerning this matter.”

Where regulators failed, citizens took action — testing their own air

2013-04-19T14:36:05-04:00

TONAWANDA, N,Y. — For the past three decades, Jeani Thomson has been pleading with New York state officials to protect her and her neighbors from air pollution that regularly spreads into her yard from an industrial plant a mile away. Many mornings, a foul-smelling, thick fog settles around her modest house in Tonawanda, a working class town of 16,000 just outside Buffalo. The “toxic blue haze,” as Thomson calls it, smells like ammonia, sulfur and “an oily exhaust.”

She believes it has made her sick. Ailments have transformed her, she said, from a fit mail carrier who walked a 13-mile route into a survivor of multiple illnesses who takes 22 medications and now moves with difficulty on stiff legs. Though only 57 years old, she has only one lung, and half a stomach. Her doctors have diagnosed her with a rare skin rash, as well as asthma and arthritis. Though she claims never to have had a cigarette, her voice has the raspy sound of a smoker. On bad days, she says, she inhales oxygen.

“It’s not anything that I ate. It’s not anything that I drank,” said Thomson. “It’s from living here and breathing the air.”

Whether her illnesses, or anyone else’s, came from the plant’s pollution can be difficult to prove. Still, concerns about toxic emissions rallied Thompson and a small group of other local people — most of them sick, later joined by dozens of other citizens complaining of similar ailments — to force complacent regulators to clean up their air.

Residents started in 2004 by using buckets and hand-held vacuums to test the air. They found shockingly high levels of benzene. With a hint from a state regulator, they figured out the main source was a plant called Tonawanda Coke Corp., a relic of the industrial age that since 1917 has been producing material needed for smelting iron.

They enlisted the help of a plant insider to help them expose practices at the plant. They recruited residents who lived closest to the plant to report to the state and the media when plumes of soot and the odors became intolerable. And they wouldn’t give up.

It took five years of prodding before state regulators formally blamed Tonawanda Coke for the high levels of benzene and moved aggressively to enforce the Clean Air Act. Finally in 2009 the state, together with the U.S. Environmental Protection Agency, swooped down on the plant for a week-long surprise inspection. Inspectors found it in such a state of disrepair that huge amounts of benzene and other dangerous chemicals were seeping from cracks in worn-out equipment and leaky pipes.

In a cascade of civil and criminal enforcement actions since then, the EPA has accused the plant of vastly underestimating its toxic emissions, operating illegal equipment that pumped untreated toxic gas into the air and failing to use pollution controls required by its permit that would have prevented releases of hazardous particles.

The case highlights not just possible corporate wrongdoing but the risks posed to communities around the country by an environmental regulatory system that largely entrusts companies to disclose how much toxic pollution they emit, and can take years to act once violations are discovered.

State and federal records in the Tonawanda Coke case illustrate the failure of that honor system. For many years, regulators apparently had no idea the company was discharging into the air benzene, formaldehyde and other chemicals — known to be harmful to health — in quantities many times greater than the company estimated to regulators.

Even after regulators forced the firm to fix blatant sources of benzene, sophisticated measuring equipment found the solvent seeping out of the plant at a rate of 91 tons per year, according to an EPA analysis. That was almost 30 times higher than the 6,754 pounds the firm had reported to the EPA in 2009 as part of the Toxics Release Inventory. Benzene has been associated with blood disorders, infertility, and cancer, especially leukemia.

EPA officials acknowledged in interviews with the Center for Public Integrity’s iWatch News and NPR that the Tonawanda Coke case demonstrated a weakness in tracking and curbing toxic air pollution. “The monitoring and reporting systems that have been in place for many years may not be telling us everything we need to know to identify and reduce toxic air pollution,” said Assistant Administrator Cynthia Giles, who oversees enforcement.

Executives with Tonawanda Coke declined to be interviewed for this story because of pending criminal, civil and administrative cases. A lawyer representing the company, Rick Kennedy, said Tonawanda Coke denies the allegations in each case and “intends to contest the allegations vigorously in formal legal proceedings.”

Several key state and federal regulators, explaining that they are potential witnesses in the case, also refused to be interviewed.

Joe Martens, commissioner of New York’s Department of Environmental Conservation, defended the record of his agency, which eventually set up high-tech air quality monitors that documented extremely elevated benzene levels, leading to the enforcement actions. But he said such sophisticated equipment had not been available previously. So state officials had no way of knowing about the benzene, formaldehyde, and other toxic emissions seeping from leaks in equipment and piping at the plant, Martens said. “Hazardous air pollutants are difficult to detect. We didn’t have the equipment to do the type of detection — you know, police work — that EPA was able to do” later.

Judith A. Enck, the EPA’s administrator for the region that includes New York — and a former top environmental official in the state — said a larger lesson can be learned from the Tonwanda experience: Communities get cleaner air when people demand it.

“If this was in an affluent city where thousands of people lived, I think there would have been more of a laser-like focus on this earlier,” Enck said.

Many people in this community wonder why it took government agencies so long to start scrutinizing such an obvious source of toxic air. But the story of Tonawanda Coke is also a modern day parable about the clout citizens can wield when they dig in their heels and demand healthy air.

‘Why are people so sick?’

For years, some Tonawanda residents have battled itchy eyes, scratchy throats, constant headaches, and illnesses such as cancer, blood disorders, gastrointestinal diseases, miscarriages, and asthma — always wondering, often suspecting. Were these conditions in some way tied to Tonawanda Coke?

Jackie James-Creedon, who grew up within a few miles of the plant, sometimes felt a strange tightness move through her body. Her hands would turn numb; her cheeks would ache. Within a year, her doctor would diagnose her chronic body pain and intense fatigue as fibromyalgia, a neuromuscular disease.

Shortly after her diagnosis, James-Creedon read an article about a state-sponsored study in Tonawanda, which was examining the health effects of radioactive contamination left from uranium processing in the 1940s. The state found “statistically significant excesses” of thyroid, breast, and bladder cancer in Tonawanda — but said radiation wasn’t to blame.

The study got James-Creedon wondering: Was something in her hometown’s industrial environment making her sick? She remembered falling off a sled when she was 10, and into a polluted creek that reeked of chemicals; the water was so thick with pollution it was almost gooey.

Seeking answers, she visited nearby Tonawanda — and smelled the familiar odor from her youth. It’s the kind of scent that ends games on ball fields; players flee from the smell. People slam windows and stay inside when it gets bad.

Everyone, it seems, has a different way of describing it. Burning matches. Rotten eggs.

The stench reminded James-Creedon of “a bad perm.”

She met people with bronchitis, autoimmune diseases, and all kinds of cancer. Many were sicker than she was; most had no explanation for their ailments. “We were questioning: ‘Why are people so sick?’” she recalled.

As in many communities, the area lacked air pollution monitors. Few neighborhoods downwind of polluters have any reliable way of detecting whether chemicals in the air have reached an unsafe level. Nor do regulators generally do much monitoring unless citizens push for it.

Then James-Creedon learned that other communities were testing their own air with household buckets, baggies and tiny vacuums. She built the original bucket with parts from a hardware store for about $100.

When the first bucket samples came back from a lab in 2004, James-Creedon wasn’t sure what to make of them. The tests showed high levels of benzene – 54 micrograms per cubic meter of air. An official from the state Department of Environmental Conservation told James-Creedon the benzene level in the sample was 500 times higher than the state’s health guideline — .13 micrograms per cubic meter.

Roughly 50 industrial polluters have air permits in Tonawanda, but James-Creedon said the state official suggested the main offender might be Tonawanda Coke. Regulators had found no major violations at the plant, and the bucket test was a crude measurement. But it got regulators’ attention, especially after the tiny neighborhood group held a press conference downwind from the plant.

“It really stirred up a hornet’s nest,” remembered Adele Henderson, one of the original bucket testers. She remembers regulators were “pissed off” that the group didn’t warn them that they were going to blame Tonawanda Coke and a couple other plants by name.

The state did its own air samples — confirming high benzene levels in the air — then sought federal money for air monitors.

Meanwhile, James-Creedon’s group did more bucket tests. They went door-to-door in the residential streets near the plant, recruiting neighbors to monitor its pollution. Whenever the plant’s odors or plumes of black smoke appeared worse than usual, they filed complaints with the Buffalo office of the state Department of Environmental Conservation.

At first the group called itself “Toxic Tonawanda,” later, the “Clean Air Coalition of Western New York.”

With their bucket test results in hand, the fledgling activists requested meetings with J.D. Crane, hoping the Tonawanda Coke owner and CEO would agree to clean up his plant. He refused to meet.

Tonawanda Coke sits on a plateau overlooking the Niagara River. It is walled off by a guarded gate and a razor-wire fence. From the outside, it’s hard to see more than its three, tall smokestacks. The decrepit equipment that spewed benzene into the air was out of sight. So were its cracked 50-year-old ovens and a huge tar sludge decanter that overflowed on to the ground during emergencies, according to an affidavit from a federal investigator and other federal documents.

Instead of fixing leaks, plant employees would fill them with wooden pegs or cover them with metal bands or strips of cloth, according to the EPA’s July 19 enforcement order.

One member of the Clean Air Coalition was married to a volunteer firefighter in town. He told the group what he saw when he went into the plant to put out fires or respond to false alarms.

“You go in there and you think you are in an abandoned facility. That’s how run down it is,” said Lou McNett, the firefighter. So much soot hung in the air at the plant, even when he went there on a false alarm, that he’d come out blackened to his skin, despite his waterproof gear and three layers of clothing.

Often, the plumes of smoke coming from the plant would appear so big and black that the fire station received 911 calls from people who thought the place was ablaze. But when the fire trucks arrived, McNett says, the security guard wouldn’t let them in.

“Just about every time we showed up they would try to block our way,” he recalled.

A company insider surfaces: ‘Our Deep Throat’

While James-Creedon and her group were taking bucket tests, Jennifer Ratajczak and her husband, Glenn, had been visiting doctors — trying to figure out why she was so sick. Six years passed before she would be diagnosed with leukemia. On that day, in May 2006, doctors explained that her disease was not genetic and asked whether she had worked with benzene.

She never had. The question stuck in her mind.

She was just shy of her 40th birthday, with two children in elementary school whom she feared she wouldn’t live to see graduate. Eventually, chemotherapy put her in remission but she must take the pills every day of her life. The disease and the medication’s side effects leave her so exhausted that she’s had to quit working as an engineering specialist for the local gas company. Now, she says, she saves all her energy for her kids.

Several years later, Ratajczak would discover at least one way she had been exposed to benzene.

In March 2008, four years after the initial bucket test, the state held a public meeting to share the first six months’ worth of data from its air monitors. One monitor showed benzene levels more than 10 times the state average. Later results suggested even higher levels, perhaps 75 times what the state considers to be an acceptable risk. Monitors also were tracking high levels of other toxic chemicals, including formaldehyde, carbon tetrachloride, acetaldehyde and acrolein.

For Jennifer and Glenn Ratajczak, who were in the audience, the news was stunning. “It was horrific,” recalls Jennifer. “I needed answers. Is it what triggered my disease? Could it be harming my husband, who is working in the industrial area? What about my two children?”

The Clean Air Coalition, the Ratajczaks learned, had long suspected Tonawanda Coke as the main source of the poisons. At that 2008 meeting, however, state officials didn’t implicate Tonawanda Coke. Nor did they announce plans to make the plant reduce its emissions.

James-Creedon remembers feeling vindicated – the benzene problem was real – yet angry that the state was still doing nothing about Tonawanda Coke. “It was maddening,” recalled Adele Henderson, an art professor who was one of the first members of the group. “I was really irritated and frustrated.”

Not long after, Ratajczak and her husband went to their first of many coalition meetings.

“After we left, I sat in the car and burst into tears,” Ratajczak recalls. “Something deep in my heart knew there was a huge problem going on in my hometown and my conscience would not allow me to turn away.”

During that summer of 2008, the pollution from Tonawanda Coke seemed especially bad. People living near the plant complained about black smoke, a burnt rubber smell. Some swore things were worse than ever. They stopped opening their windows at night or barbequing in their back yards. They kept their children away from home as much as possible. They suffered even more from sore throats, headaches and breathing problems.

Listening to the local TV news, Ron Snyder heard the residents’ health complaints, and decided to blow the whistle on his former boss. He had worked as a manager at Tonawanda Coke for 25 years but left the plant in 2005, when the owner wanted to demote him from his post as plant supervisor.

Snyder knew the plant’s operations and pollution violations, and he kept in close contact with former coworkers. He arranged a meeting with state environmental regulators, including Larry Sitzman, the state official who had been inspecting the plant.

For Snyder, a Catholic, it was like a long-overdue confession. He spilled his guts for hours.

Sitzman’s handwritten notes from the encounter, released in response to an earlier Freedom of Information Request filed by some members of the coalition, confirm Snyder’s memory.

The former plant supervisor outlined a long list of practices at Tonawanda Coke that sent noxious emissions into the air. For instance, the plant produced a dirtier type of coke, furnace coke, at night so people wouldn’t see big the “black mushroom clouds” it created, Snyder asserted. Pollution standards are more stringent for furnace coke. And frequent power failures were shutting down the plant’s exhaust system, forcing workers to open up the ovens and release untreated gases full of benzene.

Snyder expected a hero’s welcome from regulators, but, he said, didn’t get it. He also expected them to press for more information. He said he didn’t hear from anyone for more than a year.

So he chose to sleuth for the Clean Air Coalition. He asked members to conceal his identity because he feared he could face prosecution for his own actions as a plant manager.

It was a breakthrough for the group; it finally had someone to contact when it suspected something was happening inside the plant.

“He was our ‘Deep Throat,’” recalled Adele Henderson. “I always thought it was Ron Snyder’s testimony that triggered the raid on Tonawanda Coke because he knew so much and saw so many bad things happening and so many violations. Otherwise it’s a place on the hill behind fences. There’s no way of knowing what goes on there.”

Snyder’s information gave the coalition facts to go toe-to-toe with state regulators. Its new leader, Erin Heaney, said Snyder’s inside knowledge boosted members’ confidence.

“Often it’s women going up against male engineers,” said Heaney, who succeeded James-Creedon as executive director of the Clean Air Coalition. “And to be able to go in knowing that, ‘no, we actually do know what is going on in that plant’… is really, really important.”

In 2009, Snyder said, he finally heard from state and federal investigators. He met officials on several occasions, describing in detail how the plant had long been ignoring environmental requirements. Among other things, he told them the plant didn’t have basic pollution control devices called baffles, which are required by the state.

Coke comes out of the ovens at more than 1,000 degrees and goes to what’s called a “quench tower” to be drenched with thousands of gallons of water. Giant wooden louvers sit on top of the tower to catch the toxic particles that rush out with the massive plumes of steam.

Snyder said one of Tonawanda Coke’s towers never had baffles and the baffles on the other tower fell apart long ago. It would be easy for an inspector to check whether or not they were there, Snyder said; all he’d have to do is look up in the tower. To prove this point, he went to Google Earth and showed the investigators the quench towers without any baffles covering them.

Snyder recalled that he also told authorities that every 20 to 30 minutes the plant released untreated gas from the ovens into the atmosphere through a valve that was only supposed to open in emergencies.

“That’s been spewing into the atmosphere for 25 or 30 years,” Snyder said. “The DEC and the EPA would, apparently, just walk right past it.” When inspectors were expected at the plant, he said, workers would change the settings so the valve wouldn’t go off.

Claim is a ‘bun with no burger,’ CEO tells senator

State and federal inspectors finally swooped down on Tonawanda Coke in April 2009 for that week-long, surprise inspection. They found many violations of clean air, clean water, and toxic waste laws. They documented how the plant didn’t have baffles, and they caught a worker trying to change the settings on the pressure release valve so it wouldn’t open — two of the problems exposed by Snyder. Inspectors questioned the worker, who told them he was following the environmental manager’s direction.

Two months later, in June 2009, the state held another public meeting. This time, officials identified Tonawanda Coke as the main source of the benzene plaguing the community.

Jackie James-Creedon remembered jumping to her feet and applauding.

That August, the company’s owner, Crane, wrote a letter to Sen. Charles Schumer, D-N.Y., in which Crane disputed the state’s air study claiming Tonawanda Coke was the main source of benzene.

“It’s a red herring, bun with no burger claim,” Crane wrote.

Crane blamed the benzene on traffic from nearby highways instead. He also claimed that his plant was and had always been in compliance with regulations. (A state inspector corrected the record in a letter to the plant. He noted three times the state had ordered the plant to fix air pollution violations between 1981 and 2009, and pay a single fine of $6,000.)

Crane’s letter infuriated members of the Clean Air Coalition. For the first time, the group decided to hold a rally across from the main entrance of the plant. Heaney and James-Creedon went to Albany to demand action. There, they met Judith Enck, then deputy secretary for the environment.

It turned out to be an important meeting. James-Creedon and Heaney made a strong impression on Enck, who was about to become the EPA’s top official in the region. By December, armed federal agents raided Tonawanda Coke with search warrants in what had become a criminal case.

A 20-count federal indictment charges the company and its manager of environmental controls, Mark L. Kamholz, with violating the Clean Air Act by not having baffles and by illegally operating the pressure release valve. It also charges them with obstructing justice for trying to hide their illegal use of that valve.

The indictment alleges Kamholz “did corruptly influence” EPA’s inspection “by instructing a Tonawanda Coke Corporation employee to conceal” that the pressure release valve “during normal operations, emitted coke oven gas to the atmosphere,” in violation of the plant’s permit. The indictment also charges the company with violations of hazardous waste laws.

The company and Kamholz pleaded not guilty to the charges, which are still pending.

Rick Kennedy, Tonawanda Coke’s lawyer, said the company could not “tell its side of the story” because of the pending legal cases against it. But he stressed that the company has been cooperating “in good faith” with the regulators to reduce pollution despite the “serious nature of our disagreements.”

Rodney Personius, Kamholz' lawyer, said the government's "very aggressive position" against the company and his client reflected the "tremendous amount of pressure from the community." The case, he said, was likely to go to trial because the company has "meritorious defenses."

Since the raid, the EPA has been sending Tonawanda Coke official notices of its many alleged violations and demanding that it install pollution controls, fix leaks, and clean up toxic wastes.

The EPA said it proved the company was pumping out benzene at a rate of 91 tons per year. It did that by requiring Tonawanda Coke to pay hundreds of thousands of dollars for sophisticated monitoring by a device that uses lasers to measure concentrations of gases.

The ultraviolet Differential Absorption Lidar, or DIAL test, showed what the people of Tonawanda had suspected for years: Tonawanda Coke wasn’t releasing three to five tons of benzene into the air, as it had been reporting to regulators. Rather, it was pumping out benzene up to 30 times that amount, yearly, according to the EPA.

The DIAL test also gave the EPA support for its determination that Tonawanda Coke should be classified as a “major” source of benzene, which toughens its pollution control requirements. EPA’s threshold for being a major source: 10 tons per year of an individual toxic chemical, or 25 tons total of air toxics.

In July, the company agreed to an EPA order that requires it to reduce its benzene emissions by two-thirds by 2012. That agreement describes a plant still in disrepair: Many holes in piping and equipment were patched with cloth and metal bands or wooden plugs and still leak, for instance; the lid of a huge tank that catches liquids from the coke oven exhausts was falling apart, allowing toxic gases to flood on the ground.

“The poor mechanical and structural integrity of these components and equipment, and the air pollution control practices utilized, resulted in increases in preventable fugitive [coke oven gas] emissions, including emissions of VOCs and benzene,” EPA wrote in the order.

This fall, state officials told the community that the monitors downwind from the plant already show significantly reduced levels of benzene and other toxic chemicals. They estimate about half of that improvement is due to lower production at the plant. Improved pollution controls at Tonawanda Coke also may account for it.

Even so, many of Tonawanda’s pollution fighters are not satisfied with the government’s deal. “Benzene is very nasty. It’s a carcinogen,” said James-Creedon. “It is not enough for my community. The safe level for benzene is zero.”

This story was reported by Kristen Lombardi of the Center for Public Integrity and Elizabeth Shogren and Sandra Bartlett of NPR, and was written by Shogren. Jill Rosenbaum also contributed to this article.

The military children left behind: Decrepit schools, broken promises

2011-11-10T16:36:23-05:00

Catie Hunter is only 11 years old. Her father, an Army platoon sergeant, has spent five of those years away from her, serving his country in Korea, Iraq and Afghanistan. At her elementary school on an Oklahoma military post, ceiling tiles are removed so that when a Great Plains storm rumbles in, rain can cascade from the rotting roof into large trash cans underneath. To get to class, Catie must dodge what she calls “Niagara Falls.”

Each day as the fifth grader enters Geronimo Road Elementary School, she walks beneath the tiles, bent and browned, some dangling by threads of glue. In her classroom, an archaic air conditioning unit at times drowns out her teacher’s voice. Signs of disrepair abound: chipped floors, termite-infested walls, cracks the size of the principal’s finger along brick halls. A bucket, strapped by a bungee cord, hangs over the gym door — another makeshift fix for leaks.

“I’m really proud of the fact that the school is still standing,” said Catie, a pixie of a girl who twitches her nose when she talks."Sometimes, I wonder if it's going to fall in."

Catie’s Fort Sill schoolhouse, built before Gen. Dwight D. Eisenhower ran for president, isn’t the only one in poor shape. Tens of thousands of children — from Georgia to Kansas, Virginia to Washington state — attend schools on military bases that are falling apart from age and neglect, and fail to meet even the military’s own standards. Some schools have tainted water and fouled air; others are so overcrowded teachers improvise, holding class in hallways, supply closets, and in one instance, working in a boiler room. Outdated? One school in Germany was built by the Nazis.

The strains only add to the emotional pressures on the sons and daughters of U.S. military personnel after 10 years of war and long, frequent absences. The average military parent is deployed three times, each lasting 15 to 18 months. Stresses on families routinely bubble up where soldiers’ children attend class. At Catie’s Geronimo Road school, students have burst into tears after getting a phone call from Iraq. Or screamed, “I want to kill you.” Or picked up a desk and thrown it across the floor. Other effects at the schools of military sons and daughters are less pronounced yet unmistakable: Modest declines in test scores; individual grades that falter; rising student absenteeism.

Catie has been separated from her father four times since her birth. “I wish he were here,” she said. “I miss him a lot.” Her 16-year-old sister, Amanda, an honor roll student, received her first “F” shortly after the start of her father’s latest extended trip overseas. “It can be overwhelming,” said Amanda, her hazel eyes welling with sadness.

Such sacrifices, increasingly commonplace during the last decade, have gone unnoticed by many Americans. The nation’s reliance on a limited pool of volunteers to safeguard U.S. interests and wage two wars has had ripple effects on the home front. Altogether, parents of 220,000 children — including 116,000 of school-age — are currently doing the work the nation expects of them and that sends them far from home.

Those mothers and fathers might have expected schools with better conditions than these.

“I would feel disrespected if I were on my second or third tour of duty and then my kids were in a school that was dilapidated and too small or falling apart,” said Chet Edwards, a former congressman who chaired a House appropriations military construction subcommittee before losing reelection last year. “If there is one school in the world military children are attending that is dilapidated and undersized, that’s wrong. But the fact is there are a lot of serious problems out there.”

A broken promise

When America’s warfighters enter military service, sometimes putting their lives on the line, the government makes a promise: It will care for those left behind. There’s an explicit understanding that the nation will nurture and enrich soldiers’ children in safe and secure educational environments — they are assured, in the words of a U.S. Army recruiting vow, “the best possible education and experience.”

The 1978 Defense Dependents Education Act requires the military to provide “academic services of a high quality” to the children of soldiers on active duty. A 1988 Defense Department directive goes further, broadly guaranteeing military families “a quality of life that reflects the high standards and pride of the nation they defend” — including education. First Lady Michelle Obama touts the administration’s vision of “an America where every military child has the support they need to grow and learn and realize their dreams.” The White House, joining history’s chorus of voices of support for sons and daughters of soldiers, is pledging to “ensure excellence in military children’s education.”

But an array of substandard conditions at many of the 353 schools for military children around the world undercuts such assurances. Three in four Defense Department-run schools on military installations are either beyond repair or would require extensive renovation to meet minimum standards for safety, quality, accessibility and design, an investigation by the Center for Public Integrity’s iWatch News has found. Those schools do not meet the military’s own expectations, and – for lack of money from Washington – aren’t likely to improve greatly any time soon.

Other priorities — including spending on wars at a rate of around $2 billion each week — have overshadowed the needs of students from military families. All told, the mounting number of fixes and new schools would cost nearly $4 billion — around the same amount being spent this year just on drone aircraft, or, measured another way, half the cost of NASA’s Hubble Telescope, which observes distant galaxies from earth’s orbit.

Where military children go to school depends on circumstances often beyond families’ control. More than 500,000 children, the largest proportion, live off base, attending local schools in urban or suburban communities that often have significantly more resources. But families who live on military installations — either for economic, career or security reasons — send their children to one of 194 base schools operated by the Pentagon around the world, or 159 base schools in the U.S. operated by local school districts. These students — about 150,000 in all — are likely to attend schools with significant structural deficiencies. Many buildings are nearly a half-century old.

The Pentagon has placed 39 percent of its 194 schools in the worst category of “failing,” which means it costs more to renovate than replace them, reports to Congress show. Another 37 percent are classified in “poor” physical shape, which could require either replacement or expensive renovations to meet standards. (See the full list of poor and failing schools here)

Schools run by public systems on Army installations don’t fare much better: 39 percent fall in the failing or poor categories, according to a 2010 Army report.

A Defense Department task force is evaluating the 159 military base schools operated by local public systems. Only nine months into its work, the task force already has found indications of the larger problem; summaries of preliminary assessments of 15 schools shared with iWatch News leave little room for doubt about the conditions. The summary for Geronimo Road, for instance, notes that it is in “failing condition” and “should be considered for replacement.” The Pentagon declined to provide a copy of its assessments for all 159 schools.

In a written response to questions from iWatch News, the Pentagon’s education agency, the Department of Defense Education Activity, or DoDEA, acknowledged that it “cannot keep pace with the types of renovations and maintenance needed when a school building goes beyond its useful life and the age of the building becomes a barrier to using these dollars wisely.”

Makeshift classrooms, sweltering students

Visits by iWatch News to military base schools across the globe over the last four months, involving nearly 200 interviews with educators, parents and students from Tacoma, Washington, to Stuttgart, Germany, present a bleak picture of conditions endured by the sons and daughters of U.S. military personnel.

At Fort Riley in Kansas, Morris Hill Elementary School students drink water tainted brown from corroding pipes. Fort Campbell, Kentucky, schoolchildren endure “air outs” from faulty ventilation units, leaving them without air conditioning in sweltering Augusts. When winter temperatures drop below 50 degrees, classroom heaters break down.

In Quantico, Virginia, just 30 miles south of the gleaming temples of government in the nation’s capital, students at Russell Elementary School tolerate the consequences of relic air units, busted water pipes, and only one handicapped-accessible bathroom, too small for some disabled children to navigate their wheelchairs. The classroom for students with severe disabilities, meanwhile, has a small restroom dating back to 1953, well before schools had to meet special education needs. It’s a tiny space the size of a closet with little more than a toilet and sink with a dripping faucet. Parents say teachers have to undress children nearby and carry them inside.

In adjacent Prince William County, one of the country’s more affluent suburbs, the schools are more modern. Over the last decade alone, the local district has built 26 new schools, some with dazzling campuses that stretch across former cornfields and cow pastures. It’s an instance of the frequent inequities between the schools of military children and the nearby schools of everyone else. “Some of the new schools in town make our schools look like a prison,” said David C. Primer, who uses a 1980s-era trailer at the much-heralded Marine Corps Base Quantico to teach his German classes. Storms are noisy affairs that jostle the temporary classrooms.

“We are at a huge disadvantage because of this facility,” said Kistella Mitchell, an active-duty soldier whose son graduates from the Quantico high school this year. The base’s older schools have been rigged with plastic “power poles” to support technology, and teachers say fire marshals have cited them for using extension cords.

Two miles outside Stuttgart, Germany, on an Army post known as Panzer Kaserne, children of American soldiers attend Boeblingen Elementary School — built 73 years ago by the Nazis. Erwin Rommel’s tank division used it as a barracks. The school building, the military’s oldest, is ill-equipped for modern education.

Younger students stay on the first of its four floors, and are consigned to trailers when classrooms fill up. Older students tolerate tiny classrooms with tiny windows on the third floor, where their desks are crammed side-by-side or shoved into corners, making it, as fourth-grader Sarah Tabbott describes, “really hot up there.” Some modifications — such as adding fire escapes — took place only after the school was cited in 2006 for nine fire safety violations.

Conditions at other schools border on hazardous. At Fort Stewart, in Hinesville, Georgia, two of the three elementary schools are beset by poor indoor air quality. Mold has grown on walls, sprouted through floors, and stained vents. Complaints have persisted for a decade despite inspections, tests and fixes involving a costly cast of architects, industrial hygienists, microbiologists and the U.S. Army Corps of Engineers. Last fall, administrators cordoned off a library for a month so they could engage in a major cleanup that involved steam-blasting its rafters and sanitizing its books. That hasn’t alleviated other troubles at the school: scurrying cockroaches; lights shorted by water leaks. On April 8, a disintegrating gas line ruptured in a cafeteria, sparking a small fire.

“The conditions are terrible,” said Tina French, whose two autistic children attend Diamond Elementary School, where that fire erupted. Staffing shortfalls have left her son without an assigned paraprofessional, as prescribed by his psychiatrist. “DOD schools are supposed to be the best,” French said. “We’re not seeing that here.”

Teachers at crowded schools find creative solutions. To escape commotion in the hallways, where she often tests students, Fort Riley Elementary teacher Kristi York would retreat behind the door labeled BOILER ROOM. Since being barred from the space — it was “not the best or safest environment,” said school principal Becky Lay — York has turned to a storage closet packed with rolls of colored paper, overhead projectors and a laminating machine.

The military’s education agency said in a written response to questions from iWatch News that “none of our schools is unsafe and no school is a hazard to anyone.” Administrators tend to portray their schoolhouses as “well worn” yet maintained — not neglected. Many exceed their planned lifespans. Half of the military’s schools are at least 45 years old. “You fix things that are so old, they still look old,” said Marilee Fitzgerald, DoDEA’s acting director. The 19-year-old agency oversees the military’s schools worldwide.

Pentagon officials contacted by iWatch News have recognized these substandard conditions for years. Robert Gordon, the Defense Department’s top official overseeing family affairs, said the Pentagon has taken steps in recent months to address deficiencies — creating the task force to survey base schools, evaluating the quality of education, and finding money to replace aging schools over the next five to seven years. But the goal would require appropriations from a Congress increasingly wary of new spending. Gordon noted the Pentagon’s current aim is to devise a blueprint for state-of-the-art, “21st century” schools, while acknowledging the lack of a commitment on Capitol Hill to spend the money necessary.

During an interview with iWatch News, Gordon, a former West Point political science professor and aide-de-camp to Colin Powell, pointed to an Obama administration focus on military families as proof of a commitment to improve education. He predicted “significant changes of which our community will be proud, and which will provide a world-class educational environment for our kids.”

Leaders have sounded similar notes in the past. John Molino, a Gordon predecessor, sought money from Congress for “quality schools” in 2001. Molino touted “the Bush administration’s commitment to the quality education of the sons and daughters of America’s sons and daughters selflessly serving.” Former congressman Edwards recalled urging the military to fix the schools during the four years he chaired an appropriations subcommittee.

Such efforts have hardly unleashed a flood of construction cash; in the decade since Molino’s testimony, money for rebuilding the military’s schools has risen only by $162 million — less than 1 percent of all military spending.

The Defense Department’s primary business, of course, involves national security, not schooling kids. Weapons, wars and other budget priorities tend to overshadow homefront necessities. Public school districts, which educate nine out of 10 military children, often on military installations, also have had trouble finding the dollars to replace and repair foundering schools. This fiscal year, Congress allotted $750 million to fix some of the base schools’ shortcomings — a fraction of the need.

Now, with President Obama signaling the start of a drawdown in troops from Afghanistan coinciding with political clamoring in Washington for reduced spending, some advocates wonder just how meaningful all the promises will be.

Joyce Raezer is director of the National Military Family Association, which for four decades has established itself as a respected voice advocating for families. “Building schools is really expensive,” she noted. “So how many school districts and school buildings will actually benefit from this focus, we’ll see.”

‘Sticking a Band-Aid on everything’

To be sure, many factors besides the condition of a building affect learning. Quality of teachers, for instance, or the availability of effective textbooks and technology can yield dramatic classroom results. But many educators say the mix of pressures unique to military children — crumbling schools, overcrowded classrooms, and absent parents who may not return — has a measurable effect on the feelings of students and on how well they do in school.

“There are so many needs,” said Whitney Gee, a psychologist at three schools on Fort Riley. “I feel like I’m running around sticking a Band-Aid on everything.”

Good teachers adapt to decrepit school conditions, said Fitzgerald, the DoDEA acting director. “But they do have an impact.” While difficult to prove, Pentagon education officials have tried. As the backlog of substandard schoolhouses swelled in recent years, Russell Roberts, the agency’s facilities chief, set out to establish what appeared to be a link between deterioration and academics. Some studies have suggested such a link. Yet in the end, said Roberts, “I couldn’t say, ‘This kid got an F because of dingy bathroom tiles.’”

Pentagon officials denied iWatch News requests for detailed school-by-school data that would have permitted a direct and more comprehensive assessment of the association between higher deployment rates, the condition of facilities and lower test scores. Without specific information about enrollment and lengths of deployments of parents at each school, it’s hard to obtain a full, reliable picture. Yet even with such shortcomings, the iWatch News analysis of data it was able to obtain from 2008 showed a slight yet statistically significant adverse effect from deployment on test scores, especially on scores from the middle schools.

In a written response to questions from iWatch News, meanwhile, the Defense Department’s education agency acknowledged “no doubt that deployments have an effect on every aspect of a child’s life,” including education.

Over the past decade, multiple deployments have become what Lindsay Ralston, Fort Sill’s school liaison officer, terms “the new normal” — parents gone, on second, third, and fourth tours, for months at a time. Since the Iraq invasion, the Army alone has deployed 23,302 soldiers with children at least three times. That means at least one parent of the typical nine-year-old has been absent for half her life.

The military tends to refer to the “resiliency” of its children. “You have to become adaptable,” noted the Defense Department’s Gordon, who as a military child himself was shuttled between homes on multiple bases and continents during his father’s Army postings to places such as Colorado, Virginia, Germany and Taiwan.

While children can learn to cope, the emotional trauma that they bear when their absent parents are in harm’s way often plays itself out in the classroom. At Fort Stewart’s Diamond Elementary, the school with the mold and cockroach infestations, Tina French has noticed her 12-year-old daughter, Victoria, picking fights during deployments. Her Army mechanic husband has done four stints in Iraq. Each time, Victoria, a sixth grader diagnosed with Asperger’s syndrome, has regressed at school, lashing out at classmates. “She’s pushing boundaries because she’s stressed,” said French, who has found herself in the office for Victoria’s discipline referrals.

Trenton LeForge, the three-year-old son of an Army sergeant stationed at Fort Riley, has suffered separation anxiety since his father left for Iraq in November — the third deployment. Trenton refused to go to preschool at Fort Riley’s Ware Elementary School. When his mother, Carri, dropped him off, Trenton would cling to her, screaming, “Are you going to Iraq, too?” By April, he had begun attending class with help from one of the 1,000 special counselors provided by the Defense Department to schools to support students with deployed parents — or one counselor for every 116 students.

Overcrowding at Ware Elementary leaves parents like LeForge worried that her sons’ teachers cannot pay enough attention to their emotional needs — at a time when they require it the most. “It’s already a high-stress situation when you have all these deployments,” LeForge said. “The crowding is just a piling on of everything else we have to deal with.”

Her oldest son, nine-year-old Trevor, misses his father in church on Sundays, the big black bible in his father’s sturdy hands, and at Ware’s overflowing school assemblies where he would applaud heartily whenever Trevor made top honor roll. At Fort Bragg, in Fayetteville, North Carolina, J.W. Grabrysiak, 11, son of an Army electrician, yearns to fly kites again with his father in the backyard.

Sadee Songer, a precocious fifth grader at Fort Riley’s Morris Hill, the school with the brown water, cannot recall how often her father has been away in the last 10 years – it may have been three or four times. She remembers him attending only one birthday party, and trick-or-treating with him once.”It makes me sad,” she said.

Less than a year after returning from Iraq, Catie Hunter’s father in January left for Korea – an unexpected tour just when Sgt. Bryan Hunter had decided to retire because of the many missed moments with his family. When Catie found out about his latest orders to deploy, she collapsed in tears.

Once, during her father’s 2009 deployment to Iraq, he was supposed to come for a visit. The family dressed in red, white and blue, wearing beads and waving flags as troops filed through the gate at Dallas International Airport. Her father wasn’t one of them. He had missed his flight. Catie hit the floor, sobbing.

Clingy since, Catie insists on sleeping in her parents’ bed.

Multiple deployments can compound the impact of parental absences on academic achievement. A March 2011 study by the RAND Corporation for the Army found that children with parents deployed for at least 19 months had “modestly lower” test scores than their peers — regardless of gender or parent’s rank. “Rather than developing resiliency,” the study states, “children appear to struggle more with more cumulative months of deployment.”

The study reinforced findings in an earlier RAND study, in 2009, which associated greater academic difficulties with longer deployments. And a 2010 study by the U.S. Military Academy at West Point found lengthy deployments had a modest negative effect on test scores of children enrolled in military schools, especially those in the lower grades. It also implied that children whose parents deploy for longer periods may fall permanently behind when they reach the higher grades, the researchers concluded in the study. Said Raezer, of the National Military Family Association, the advocacy group that commissioned the 2009 RAND study: “I believe some of these kids are the casualties of war.”

Many teachers blame a perceived rise in behavioral issues on increasing deployments. Students have crawled under desks; come to class in pajamas; grabbed teachers in fits of rage. Data collected by some Defense Department schools support such anecdotes. This year, the system experienced an average 94 incidents at each school with high levels of deployment, compared with about 51 incidents at schools where relatively few students’ have parents serving far away.

The toll has manifested itself in greater absenteeism, too, with students typically missing class before and after deployments. “How can we tell a mom, ‘You can’t take your kid to see grandma after dad’s been gone for a year?’” posed Cheryl Serrano, of the Fountain-Fort Carson School District, which operates five schools on the Colorado Springs post. By February, her district had recorded 1,700 students — 23 percent — absent at least 10 percent of school days. Educators at Defense Department schools say some students skip 50, 60, or even 70 days a year.

At specific schools, principals said the impact on academic performance is unmistakable. Vern Steffens, who heads Fort Riley’s Jefferson Elementary School, which already has a “poor” rating for its deterioration, said he worried about low test scores as well. He noted that as the proportion of students with a deployed parent rose over the last two years, from 23 percent to 41 percent, reading test proficiency rates plummeted 23 percentage points.

Because of that drop, in 2010, Jefferson did not make what’s known as “adequate yearly progress,” a measurement of how well schools are meeting standards required under the No Child Left Behind Act. At the time of state testing, 2,800 soldiers in the post’s Combat Aviation Brigade were in the process of deploying — including 175 parents at a school with 349 students.

“They were focused on their dads leaving,” said Steffens, not on tests.

Swelling numbers, crowded classrooms

Deterioration and deployments are hardly the only afflictions at Jefferson, one of six schools on Fort Riley, a sprawling post in the Flint Hills, that majestic part of Kansas known for its tallgrass prairies. Military consolidation and war have led to an explosion in growth at the fort, with added Army units from shuttered bases — 18,000 soldiers in all.

Open fields have given way to rows of cookie-cutter houses strewn with American flags and WELCOME HOME, PAPA banners. The boom has put pressure on Fort Riley’s outdated schools, officially rated as being in “poor” shape. In six years, enrollment has grown 25 percent — packing 2,741 students into buildings designed to hold 2,013. And still they come: Administrators anticipate another 400 by August. “We’re just bulging at the seams,” said Deb Gustafson, principal of Ware Elementary, where the LeForge boys go. In September, 702 students attended this school built for just 580. Within nine months, the number topped 800.

Overcrowding has made for large class sizes — around 30 students, compared to the typical 20 students per class in the nation’s public elementary schools overall, according to Education Department data. Fort Riley’s Morris Hill Elementary has even had 35 fifth graders and their desks crammed into a classroom of 850 square feet — about the size of a small city apartment.

Educators have improvised new classrooms from staff lounges, principals’ offices, even supply closets. At Fort Riley Middle School, teachers travel from one class to the next, hauling carts of textbooks and laptops. Administrators at Custer Hill Elementary School have converted the stage in an auditorium into a classroom. At Fort Riley Elementary School, the stage has been relinquished to the custodian’s desk.

Among the most crowded schools, Fort Riley Elementary, with an average student-teacher ratio of 28-to-one, sits atop a hill overlooking the historic main post. Inside, corridors are dotted with tiny desks and chairs, where students are tutored. Hallway vestibules, three-by-five feet, have become testing areas for students, like Paige Boland, now nine. Her mother, Tracy, remembers walking into school nearly three years ago, and spotting Paige, then a first grader, kneeling on the floor, reading aloud to her teacher in one of those vestibules. Her teacher, Boland learned, had nowhere else to go.

As a school support monitor, Boland, who assists teachers with student discipline, once had an office, replete with pillows, where she could help kids deal with what she calls “their moments.” This year, she has aided students wherever she could — the gym, the principal’s office. One fifth grader recently broke down in tears in class because her mother was injured in Iraq. Boland spent an hour with the girl, leading her from room to room, seeking a private space to calm her down.

For students, the overcrowding can feel overwhelming. They bump into classmates; they get distracted. “I feel like I haven’t learned anything all year,” said Sadee Songer, the fifth grader at Fort Riley’s Morris Hill, because so many students are competing for attention. Her class had as many as 35 kids. Songer complains of having to do busy work rather than lessons that challenge her. “The teacher doesn’t give a lot of attention,” she said.

Overcrowding leads to other constraints in education, too. Teacher Megan Stucky has calculated that, during a six-hour school day, she devotes just 11 minutes, uninterrupted, to each of her 26 kindergarteners. Her colleague, Kimberly Dressman, cannot ask her first graders to read stories aloud now that her reading group consists of 22. And Jolynn Henry cannot keep up with her second graders’ soccer games and birthday parties since having an average 30 students in her class — the largest in her 26-year career.

Schoolhouse strains have begun showing in some metrics of performance — and not just at Jefferson. In a letter to the local school board, Greg Lumb, principal of Morris Hill, noted that, from 2008 to 2010, the post’s elementary schools have added 298 total students — up 17 percent — and only four total classrooms, while their “standard of excellence” awards for students who score in the highest percentiles in reading and math on state tests have dropped — from 114 to 79.

Becky Lay, principal of Fort Riley Elementary, worries about the nine percentage-point decline in her school’s scores. Already, she and fellow administrators are gearing up for hundreds more soldiers and their families next year. “At times,” she said, “I wonder, ‘How much longer can we hold on before we break?’”

‘Scary’ conditions and temporary fixes

Emblematic of the challenges and consequences are the military’s two older schools on Fort Stewart, an artillery post an hour south of Savannah, Georgia, speckled with lush pines. From the outside, they look tidy, clean and their ceiling tiles gleam. But what lurks beneath their surface is what Tim James, the former operations chief overseeing maintenance at the schools, finds “unbearable.” At Diamond Elementary, leaks from its rotting roof have caused lights in classroom G3 to spark — “a serious safety hazard,” according to an Aug. 24, 2010, inspection report — forcing administrators to evacuate the classroom. Buckets, some of them 55 gallons, routinely collect rain.

Documents obtained by iWatchNews peg the roof leaks as the top culprit for vexing indoor air-quality problems, compounded by antiquated ventilation units. Teachers have complained about a host of health issues including sinus flare ups and allergic reactions. Connie McCurtis, a special education teacher, says she never suffered such severe respiratory woes until coming to Diamond five years ago. In December she left. Meanwhile, administrators acknowledge having to move some teachers from classrooms or transferring them altogether.

“The conditions scare me,” said Michelle Sherman, whose two sons, ages six and four, attend Diamond. She attributes her kindergartner’s two bouts of pneumonia to conditions at the school. Her preschooler’s teacher filed a complaint about “black stuff” blowing from vents; ceiling tiles “turning gray to black”; and “damp and musky” odors, internal emails show. Cockroaches are regularly spotted on walls, electrical plugs and cafeteria tables.

Administrators are scrambling for temporary fixes. In February 2010, the Defense Department paid for a year-long, $110,000 study on the school’s air quality, conducted by the Army Corps of Engineers. Meanwhile, documents show, inspectors noted “visual signs of mold” in the library and “high counts of mold spores” in two classrooms. Remedies include new “air handlers,” and anticipated patching of the roof — a major job. Administrators are considering “simple alterations” to the ventilation system to address elevated carbon dioxide levels.

“All we’re doing is putting Band-Aids on the problems,” acknowledged Robert Heffley, who manages school facilities at Fort Stewart. The 1955 Diamond schoolhouse is not slated for replacement until 2015.

Brittin Elementary School, two miles away, has the distinction of being the only Defense Department school shut down because of poor air quality. After years of problems and complaints, administrators in 2002 moved its population into trailers while replacing its ventilation system — a multimillion-dollar expense. Some teachers say mold has since returned, sickening staff and pupils. An April 2006 indoor air-quality inspection shows teachers have reported everything from “burning hands and numb tongues” to “students sneezing.” The report found dirty air filters, “prone to mold growth,” and “elevated carbon dioxide levels” signifying “poor ventilation.”

The Pentagon’s education agency, in a written response to iWatch News, said “the claim that Band-Aid fixes were made is inaccurate,” and noted that architects, engineers, industrial hygienists and microbiologists all had visited Brittin and helped devise remedies.

Area school officials, too, dismissed concerns as overblown. Superintendent Samantha Ingram acknowledged schools are “worn out” but said the air quality concerns are “a perception problem.” The most recent study on Diamond, she said, found no “bad” air. A copy of the preliminary report from the Army Corps of Engineers, provided to iWatchNews, shows inspectors found “slightly elevated mold concentrations” in a dozen classrooms, as well as carbon dioxide “above recommended levels.” While not generally indicative of a health concern, the findings suggested a need for further tests.

Parents and teachers at several schools described building issues that languish for months; sometimes, they say, it takes a visit by an outsider — a VIP or a reporter — to fix things. During a reporter’s April visit for this story, custodians were replacing water fountains at Brittin that, teachers say, had been busted for four years.

Some parents are willing to overlook troubles at the military’s schools in expectation of a coming replacement — or in hopes of a transfer. Educators at Rota High School, on Naval Station Rota, in Spain, liken their new, $23 million building to “paradise” — a welcome substitute for the 1958 facility shuttered last fall. The Army has funded construction of some swanky, state-of-the-art schools on its posts, including one at Fort Stewart that features wide open halls, spacious classrooms, computer labs with built-in fixtures, and a massive gym.

At Murray Elementary School, on Fort Bragg, custodians sealed the roof after rainwater poured into the gym, spurring health complaints and air tests. Seven miles away, at Irwin Intermediate School, air units fail about once a month, leaving students hot or bitterly cold. But with a new school under construction, parents and teachers said they can overlook the obvious dilapidation. “It wasn’t anything I hadn’t seen before,” said Mimi Claftin, whose fifth-grade son attends Irwin. She and others say they are willing to sacrifice on physical defects because of caring educators, diverse programming and modern technology.

Money shortfalls and friends in high places

Over the past decade, as the nation waged two wars, annual military spending skyrocketed 150 percent to $729 billion while money for the military’s schools has risen less quickly — about 50 percent, to $1.9 billion. Money for school construction has amounted to even less, an average $81 million annually from 2001 to 2010 — barely the cost of a RQ-4 Global Hawk reconnaissance vehicle, the latest “drone” used by the U.S. Air Force. That’s only enough money to replace two of the more than 130 substandard schools each year. At that rate, it would take 67 years to replace or renovate all 134 poor and failing schools. By then, of course, there’d be more of them.

Last August, the Defense Department’s education agency unveiled a plan that could take up to seven years to replace or renovate its failing and poor schoolhouses — at $3.7 billion. “Military personnel already make a lot of sacrifices,” said Fitzgerald, the acting director, explaining the Defense Department’s “good news” investment. “What the department is trying to do is to make sure their children are not sacrificed as well.”

But Congress has committed only $484 million for the current fiscal year, enough to repair or replace 10 schools. Under the blueprint, another 97 would be repaired or replaced by 2017 — provided Congress agrees to spend the remaining $3.2 billion. But in the current political climate in Washington, such a pricetag suggests slim odds of approval.

Meanwhile, the government each year spends another relatively small amount, $30 million, on “impact aid” for public schools with students whose parents work in the military. But that money is spread among more than 120 school districts and doesn’t always trickle down to where it is needed. Some schools have spent the money on counseling and special education that benefits military children, but others have made general purchases such as computers for teachers. In Minot, North Dakota, for instance, the money has gone for new copier machines and paving parking lots. The federal government gives districts wide latitude in how the money can be used.

In Kansas, every school district, even those without military students, is entitled to some of the money. That leaves the system serving Fort Riley, for example, with only $3 million of the $12 million it is entitled to — hardly enough to build new schools, and most of it needed for $2 million annually in routine maintenance. “It would take a lot of time to save for a new elementary school,” said Ron Walker, the superintendent in Geary County.

The dual system that has evolved for the education of military offspring has itself created confusion and conflict over who has responsibility for meeting students’ needs. Some attend Pentagon-run schools, others are managed by local school systems, including many on bases. Taxpayers are wont to front money for new schools, creating haves and have-nots — with military students being the have-nots.

In Junction City, Kansas, for instance — near where Sadee Songer goes to school — voters in 2006 approved spending $33 million to address overcrowding. It was the first such bond in the community for five decades, and contained enough money to build two new schools. The support has yet to extend to schools on the Fort Riley post. “The local taxpayer says, ‘Why should we fix or build new schools there?” said Charles Volland, communications director of the Geary County schools.

Kate Sullivan, whose two youngest sons attend Geronimo Road, bristles at the rejection by Lawton, Oklahoma, residents in 2009 of a $13 million bond to fix that school. That forced the district to collect half through a sales tax. “Finger pointing” broke out between the local community and the federal government, said Sullivan. Ralston, school liaison officer at Fort Sill, summed up the debate over schools caught in the jurisdictional no-mans-land: “People in Lawton have said, ‘Hey, those schools are Fort Sill’s,’ and Fort Sill has said, ‘Hey, they’re not our schools.’”

Accumulating shortfalls have translated into trade-offs at the military’s schools. “Do we build schools, or do we give more money to the educational program?” said Kevin Kelly, DoDEA’s budget director. Rather than plow money into major maintenance — renovating old classrooms, overhauling old infrastructures — administrators say they have relied on Band-Aids and cosmetics, fueling the military’s backlog of 130-plus schoolhouses in disrepair today.

“Without those sustainment dollars,” said Roberts of the military’s education agency, who oversees school construction, “our facilities did deteriorate.”

It helps to have friends in high places, of course. Defense Secretary Gates on May 19 attended the groundbreaking ceremony for a new elementary school on Fort Riley. He reminded the crowd of a personal commitment he made a year earlier when noticing “the very unfortunate and bad situations here.” The Army transferred $29 million from its coffers for the new school. “Today,” said Gates, “I deliver on that commitment.” One parent, Twinkle Astorga, was so elated she drove a half mile to the construction site, her four kids in tow. Later, her deployed husband called from Iraq, asking if the news was true.

Last August, Rep. Norm Dicks, the top Democrat on the House defense appropriations subcommittee, inserted $250 million into military spending for fiscal 2011 “to address capacity or facility condition deficiencies” at base schools run by local public systems, which Congress passed in April. Among the potential beneficiaries: schools in his district, on the Joint Base Lewis-McChord in Tacoma, Washington, which he described as having “deplorable” conditions. Six of the base’s seven schools are a half-century old, fail to meet building codes, and face overcrowding. The district stands to collect $150 million of the congressional funds. Another is Geronimo Road, now scheduled for replacement sometime before 2016. Two months after iWatch News visited Catie Hunter’s school and started asking questions, Army undersecretary Joseph Westphal on May 7 visited, pledging “to help rebuild our schools on this installation.”

Good intentions sometimes lead to incomplete solutions. After a 2008 report to Congress catalogued the dismal state of the military’s own schools, the Pentagon began funneling some money into them. The results are noticeable. Today, even the most decrepit schools can abound with what some teachers describe as “an overkill” of classroom smart boards, flat-screen TVs and furniture.

Still, said former Rep. Edwards, who served for two decades, military families with few resources must compete for budget dollars with the well-oiled lobby machines of the military-industrial complex. “I had hundreds of representatives and lobbyists come into my office fighting for multibillion-dollar weapons programs,” recalled the former appropriations subcommittee chairman. “But I only had a handful who ever walked in and said, ‘we need more impact aid funding or we need to improve DOD schools or our kids deserve better education.' It’s just a stacked deck.”

One of the few advocating for school money is John Forkenbrock, executive director of the National Association of Federally Impacted Schools, which lobbied Dicks to set aside special spending for the selected schools. Larger solutions have proved elusive, however. “It’s like pulling teeth to get Congress to recognize there may well be a federal responsibility here,” he said.

Dicks spokesman George Behan said the appropriation for base schools run by local districts was only a start, “intended to be an ongoing effort until we bring [all of the] schools back to standards.”

The school funding was among $1.4 billion in spending items that drew criticism from Republican John McCain, who argued on the Senate floor in April that such programs are “not considered core activities of the Department of Defense,” and blasted them as “examples of … misallocated resources.”

The Defense Department’s Gordon, for his part, said the task force evaluating base schools is looking “to ensure a way ahead to allow us to get to those schools in dire need now.” As for the plan to fix the military’s schools, he added, “we’ve got quite a commitment and, right now, our plan is to execute on that plan.”

For many military children, like 11-year-old Catie Hunter, such help would come too late. The fifth grader will be in eighth grade by 2014, the earliest date when her school is expected to be fixed.

Just now, Catie has two wishes — that her dad returns home safely, and that her school remains “still standing.”

Data editor David Donald, Berlin-based freelancer Jenny Hoff, and researchers Julian Hattem and Devorah Adler also contributed to this story. A version of this story appears in Newsweek magazine.