Howard Berkes stories from The Center for Public Integrity

New federal scrutiny in wake of Center and NPR grain bin 'drownings' report

2013-03-29T16:17:27-04:00

Congress, the Occupational Safety and Health Administration and the Justice Department are beginning to respond to the NPR-Center for Public Integrity Series on hundreds of persistent and preventable deaths in grain storage bins and weak enforcement by federal agencies.

Two federal officials familiar with the case say that the Justice Department is again considering criminal charges in the incident in Mt. Carroll, Ill.,in 2010, in which 14-year-old Wyatt Whitebread and 19-year-old Alex Pacas suffocated in thousands of bushels of corn. Will Piper, 20, survived but was unable to save his friends and co-workers. The owner of the grain bin, Haasbach LLC, was initially fined $555,000 but OSHA cut the fine by more than 60 percent.

NPR/CPI obtained Labor Department documents that showed the Justice Department initially declined to file criminal charges in the case, despite multiple willful violations and what one former OSHA official called "the worst of the worst" cases.

The officials now tell NPR that the Justice Department asked the Labor Department to again provide the Mt. Carroll case files. The request was made in January when NPR and CPI were pressing the agency to respond to questions about the case.

"They're taking another look" at the Mt. Carroll incident, one source said.

"They should reconsider," says Annette Pacas, Alex's mother. "It was a crime. They killed two kids. It should be prosecuted as a crime."

Wyatt Whitebread's mother Carla is hoping criminal charges will follow.

"Unless that happens this kind of thing is not going to stop," Whitebread says.

Haasbach LLC has declined comment given wrongful death and injury lawsuits filed by Piper, the Whitebreads and Annette Pacas.

A spokesman for Gary Shapiro, the acting U.S. attorney in the Northern District of Illinois, said he couldn't comment, citing agency policy.

Another source briefed about OSHA's response says the NPR/CPI series prompted an internal warning to agency officials. NPR/CPI reported that OSHA has routinely slashed fines and erased its most serious citations even when willful violations of law result in worker deaths.

Senior agency staffers were told this week that the NPR/CPI series has put grain bin violations under scrutiny and requires more "thinking" about penalty reductions in cases with willful citations and fatalities. An OSHA spokesman declined comment.

Congress is also beginning to respond to the NPR/CPI series. Three Democratic senators cited the NPR/CPI findings in announcing their support for the newly-reintroduced Protecting America's Workers Act (PAWA).

"Whether working on a factory floor, on an oil rig, or in a grain bin, our workers and their families need to know that they will be safe and protected at the workplace," said Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor and Pensions committee. "And when violations do occur — especially those leading to injury and death — our laws need to be enforced, with lawbreakers held responsible."

Sen. Bob Casey (D-Pa.), chair of the Senate Employment and Workplace Safety subcommittee, said, "Updating our workplace safety laws and enforcement tools will reduce the number of work related injuries and deaths."

PAWA makes felony charges possible when repeated and willful violations result in a worker's death or serious injury. The bill also calls for tougher penalties.

"No worker should be put in a position of mortal danger, especially those who are untrained and ill-equipped," said Sen. Patty Murray (D-Wash.), the chief sponsor of PAWA. "The evidence is clear that neither current criminal penalties, nor the paltry level of civil penalties allowed for under law, are sufficient to stop those employers who repeatedly violate the law and put workers in danger that leads to their death."

Under current law, workplace deaths are misdemeanors with convictions bringing no more than six months in prison. NPR/CPI reported that criminal prosecutions are rare in grain bin deaths and no one has gone to jail. Federal prosecutors decline worker death cases because they have felony crimes with more serious punishment competing for their attention.

Finally, NPR and CPI have been inundated with responses from listeners and readers. Many offered to respond to the plea of Mt. Carroll survivor Will Piper, who said he wanted to raise money for a headstone for his friend, Alex Pacas.

One anonymous donor pledged to pay the entire costs of a headstone. There's also a newly announced effort in Mt. Carroll to erect a memorial to Pacas and Whitebread in their favorite city park.

Worker suffocations persist as grain storage soars, employers flout safety rules

2013-04-23T11:57:39-04:00

MT. CARROLL, Ill. — Will Piper and Alex Pacas were being buried alive.

It was July 28, 2010, just before 10 a.m., and the young men strained to breathe as wet corn piled up around them in Bin No. 9 at the Haasbach LLC grain storage facility. A co-worker, Wyatt Whitebread, had already been pulled under.

The ordeal in Bin No. 9 played out over 13 hours as hundreds of townspeople maintained a vigil outside. In the end, Whitebread, 14, and Pacas, 19, were dead. Piper, 20, avoided suffocation by inches.

Whitebread, compact and athletic, was happy to have summer work. Pacas, slight and musical, was an aspiring electrical engineer just days away from returning to classes at Hamilton Technical College in Davenport, Iowa. He’d started at Haasbach the day before.

“He prayed for his life,” survivor Piper said of Pacas’s last moments. “He said all he wanted to do is see his brothers graduate high school. And then he spouted off the Lord’s Prayer very quickly, and shortly after that one last chunk of corn came flowing down and went around his face.”

The three had been hired to keep corn flowing in the bin, one of 13 in the Haasbach complex on Mill Road in Mt. Carroll, population 1,700. They’d been sent in with pick axes and shovels that morning to break up corn piled 10 to 24 feet high in the bin and knock clumps from the walls. No one had told them they needed to wear safety harnesses — stored in a red shed nearby — to keep from sinking.

“I had no idea that someone could get trapped and die in the corn,” Piper told investigators with the Department of Labor’s Occupational Safety and Health Administration.

Grain storage in the United States is surging, in part because of the boom in biofuels. Yet at worksites, farmers and commercial operators keep making the same mistakes. Workers, some of them young, keep drowning in grain or getting hurt.

The practice known as "walking down grain" is illegal. Federal penalties for employers who permit or require it, however, are routinely pared. Since 1984, OSHA has cut initial fines for grain-entrapment deaths by nearly 60 percent overall, an analysis of enforcement data by the Center for Public Integrity and NPR shows. And even in the worst instances of employer misconduct, no one has gone to jail.

Twenty-six people died in entrapments in 2010, the worst year in decades. At least 498 people have suffocated in grain bins since 1964, according to data analyzed for the Center and NPR by William Field, a professor of agricultural and biological engineering at Purdue University.

At least 165 more people drowned in wagons, trucks, rail cars or other grain storage structures. Almost 300 were engulfed but survived. Twenty percent of the 946 people caught in grain were under 18.

“At some point we’re going to have to decide whether these incidents are just accidental … [or] somebody’s really making horrendous decisions that approach a criminal level,” said Field, who has studied entrapments since 1978 and served as an expert witness in grain-death lawsuits and as an industry and OSHA consultant. “It’s intentional risk-taking on the part of the managers or someone in a supervisory capacity that ends up in some horrific incidents. The bottom line is if you ask them why they did it, it was because it was more profitable to do it that way.”

After the Mt. Carroll accident, OSHA sought to make an example of the farming families that owned Haasbach by proposing a $555,000 fine for 25 alleged safety violations.

The Labor Department’s Wage and Hour Division tacked on a $68,125 fine for the illegal employment of Wyatt Whitebread and three others who were too young to be working in a hazardous setting like a grain bin. OSHA sent its case to the Department of Justice and the state’s attorney in Carroll County, Ill., for possible criminal prosecution.

Although Haasbach paid the full amount for the child labor violations, the OSHA fine was reduced to $200,000. The Justice Department declined to prosecute, according to a Labor Department document provided to the Center in response to a Freedom of Information Act request. The state’s attorney “indicated lack of interest” in pressing charges, the document says.

Haasbach has been dissolved. Its officers declined through their lawyer to comment.

In an interview at their home, Wyatt Whitebread’s parents spoke of their lingering disquiet. They have brought a wrongful-death lawsuit against the principals of Haasbach and the company that leased the facility at the time of the accident, Consolidated Grain and Barge Co.

“I guess I’m vengeful,” said Gary Whitebread, a large-animal veterinarian. “I want [the defendants’] life to be affected like mine. I want them not to be able to go about their daily business like nothing happened.”

“You know, if nothing happens of this, then boys that age are expendable,” said Carla Whitebread, a high school Spanish teacher. “There’s no recourse for it. It didn’t hurt the company at all. And if nothing else happens, then why not hire 14-, 15, 16-year-old boys and just put them in there ... what’s the difference? It’s not going to cost you anything.”

Panic in Bin No. 9

Until Haasbach LLC acquired it in 2005, the grain-storage complex where Wyatt Whitebread and Alex Pacas died had been owned and operated by Consolidated Grain and Barge, a Louisiana firm with grain operations in 70 locations, mostly in the Midwest. The complex, about 10 miles east of the Iowa line, has a storage capacity of 2 million bushels.

Haasbach was formed by three farming families in northwestern Illinois; two of them, the Haases and the Harbachs, had operational control of the Mt. Carroll facility. After taking charge — “We purchased it for the storage of our grain rather than building more storage at home,” Willard Harbach explained in a deposition — Haasbach leased it back to Consolidated, which handled the weighing and inspection of the corn and dictated its condition. Haasbach’s and Consolidated’s corn was intermingled.

The corn crop stored in the summer of 2010, harvested the year before, was unusually wet, making it prone to clumping. People had to be sent into the bins to break it up; the Haasbach manager, Matthew Schaffner, needed extra help.

That summer, Schaffner’s daughter, Marti Jean, loaded trucks and cleaned out bins at Haasbach for $8 an hour. Then 15, M.J., as she was called, recruited her friend, Wyatt Whitebread, to work in the bins. He started July 19. Will Piper started the next day. At Piper’s suggestion, Matt Schaffner brought on Alex Pacas — known to friends as Paco — on July 27.

“Our job was to break up the rotten chunks of corn that prevented the corn from flowing into the center of the bin,” Piper said in an interview. “The training I received was just from Wyatt, telling me how to break up the corn, the best way that he did it. Later that day Matt came up and just kind of expressed to stay away from the center hole in the bin so that we didn’t get sucked up into that.

“But there was no safety training or anything like that.”

On July 28, Piper, Pacas, Whitebread and a fourth worker, 15-year-old Chris Lawton, showed up around 7 a.m. and were sent into Bin No. 9. It was a hot, humid day. Conditions inside the bin were oppressive.

About 9:45 a.m., Matt Schaffner opened the second of three holes in the bottom of the bin with the aim of improving the corn’s flow.

“It created kind of a quicksand effect,” Piper said. “So we worked around it and we were aware of it, and after a while … Wyatt ended up getting caught up in it and started screaming for help. Me and Alex went in after him, and we each grabbed one side of him under his armpits and started dragging him out, and got pretty close to the edge of the quicksand and then we started sinking in with him.”

Lawton scrambled out of the bin and went for help; he was so distraught he could barely speak. M.J. Schaffner turned off the conveyor that was running under the bin and making matters worse by drawing down the corn. She told her father that Piper, Pacas and Whitebread were stuck.

“And it was just me and Alex standing there up to our chests completely, just trapped in the corn,” Piper said. “And Wyatt was underneath. I was hopeful that he was still alive, but at this point I’m pretty sure that he suffocated pretty quickly. The pressure underneath the corn was just too great.”

Matt Schaffner climbed into the bin and began digging frantically to reach Wyatt. “After, like, 30 seconds of digging he realized that he wasn’t getting anywhere and there was no hope,” Piper said. “So he set his shovel down and I told him to go back outside so that the rescuers knew what bin to go in.”

Schaffner climbed out of the bin. The corn kept flowing around Piper and Pacas. “After a little bit [Pacas’s] hand was sticking up above the grain and I could just see his scalp, and his hand stopped moving,” Piper said. “And the corn was up to my chin at that point. And it was slowly trickling down … and I was about to be covered, too.”

Piper believes he was saved by the two inches of height he had on Pacas and a bottomless plastic bucket a firefighter had jammed over his head to keep the corn away from his face. The rescuers began vacuuming away the corn, a process that took about six hours. They were able to yank Piper out by the arms at about 4 p.m. He was put on stretcher and airlifted to a hospital in Rockford, 60 miles away.

Outside the Haasbach complex, a crowd was gathering. “We just sat on the grass, crying, and just waited and more people came,” said Lisa Jones, a mother of six who knew Whitebread, Pacas and Piper. “Church people came and brought food and water.”

Teenagers, many of them Whitebread’s classmates at West Carroll High School, filled the parking lot at the Land of Oz, a convenience store across the highway.

Jones stayed with Pacas’s mother, Annette, as the hours passed. Jones’s husband, Matt, a funeral home owner and the Carroll County coroner, was getting regular updates on the rescue effort and relayed the information to his wife by cell phone. “We knew it wasn’t good,” Lisa Jones said. Rescuers cut a series of triangular-shaped holes into the side of the steel bin, near the bottom, to help drain the corn. As it spilled out onto the ground, volunteers shoveled it away.

Word came that one of the workers was alive, though “they didn’t know which one,” Jones said. “And so all of the families were just sitting there, waiting, and then, finally, we knew Will was alive. And then they brought Will out and … he had, like, indentations all over his skin from corn.”

“The chaplain called us over and he said they got Will out and he was face to face with Alex and Alex is deceased,” Annette Pacas said. It took another six hours for Alex’s and Wyatt’s bodies to be recovered.

“One of the things as a mom I’ve really struggled with is that my son died in terror,” Pacas said. “He didn’t die in peace.”

Gary Whitebread fixates on a detail he missed in the days prior to his son’s death.

After Wyatt broached the idea of working at Haasbach, Gary drove to the site. He saw workers sweeping corn from a near-empty bin; that, he understood, was what Wyatt would be doing. He allowed Wyatt to take the job.

In the Whitebread household, Gary did the laundry. During the brief period Wyatt worked at Haasbach, “my washer would be full of corn,” Gary said. “And I’d reach in his pockets and there’d be corn in his pockets. And that should have been a red light to me. I mean, if you’re sweeping an empty bin out or standing in corn maybe up to your knees, you’re not going to have corn in your pockets.”

Piper, the survivor, continues to struggle. “I guess the incident itself wasn’t the worst part about it,” he said. “It was the fact that I lost Wyatt and Alex. … They were both like family, like brothers, to me.”

Tall and thin, with close-cropped red hair, Piper was a self-described “band geek” in high school who held jobs at the Dairy Queen in Mt. Carroll, the Metform Machine Components factory in nearby Savanna and a Minnesota ski resort before signing on at Haasbach. He and the dark-haired Pacas, also a musician, were inseparable.

“He was the one person I shared everything with,” Piper said. His goal is to raise money for a permanent headstone for Pacas’s grave at the Oak Hill Cemetery; a teetering, weather-beaten plastic marker stands there today.

Wyatt Whitebread, younger and sandy-haired, was a mischievous charmer. “He would gather people to play baseball or soccer or blow up my backyard,” Lisa Jones said, laughing. “I spent a lot of time saying, ‘Wyatt!’ And he’d just smile real big and then you weren’t mad anymore.”

Aftermath: citations and litigation

The OSHA investigation into the Mt. Carroll accident began the evening of July 28 and culminated not quite six months later with the issuance of three citations alleging 25 violations by Haasbach, including failing to train the four young workers in Bin No. 9 in “safe work practices” and failing to turn off the conveyor under the bin.

Twelve violations were classified as willful, suggesting Haasbach either disregarded or was “plainly indifferent” to the law. An internal OSHA document obtained by the Center and NPR offered justification for the willful violations: The people in charge of Haasbach had worked around grain for 30-plus years, the document says, and had heard about grain entrapments.

All told, OSHA wanted Haasbach to pay $555,000 in penalties.As often happens, the final amount was whittled down.

A Center-NPR analysis of OSHA data shows that 179 people died in grain entrapments at commercial facilities — bins, rail cars, etc. — from 1984 through 2012. The fines initially proposed in these cases totaled $9.2 million but were cut to $3.8 million, a reduction of 59 percent. Given that some of these cases are still open, the fines could drop lower still.

The five largest fines, which ranged from $530,000 to $1.6 million, were cut by 50 to 97 percent.

Haasbach wound up paying $200,000 for the violations in Mt. Carroll, a 64-percent discount.

In an interview, OSHA chief David Michaels explained: “We had them open their books and we determined that $200,000 was the appropriate fine. The company also agreed to go out of business and to notify OSHA if they ever went back into business, so we could conduct very strict oversight of them.”

Carla Whitebread was unimpressed.

“I mean, for the company, that amount of money doesn’t make any difference at all,” she said. Indeed, data compiled by the Environmental Working Group, a nonprofit research organization, show that the seven-member Harbach Family Partnership received $6.5 million in federal farm subsidies from 1995 through 2011, Haas and his son $1.4 million.

“When I first saw the fine of half a million, I bawled,” Annette Pacas said. “A half a million dollars and you killed two kids and ruined a third. And now it’s down to [$200,000] … It’s disgusting.”

The Whitebreads, Annette Pacas and Will Piper have lawsuits pending against Haasbach and its lessee, Consolidated Grain and Barge. In court documents, each defendant blames the other for the accident.

Haasbach partner Robert Haas faulted Consolidated for storing corn with a moisture content exceeding 15 percent.

“They would always put grain in the bins in Mt. Carroll at 16 percent,” Haas told Kevin Durkin, lawyer for the Whitebread and Pacas families, in a deposition. “You get over 15 you almost know you’re going to have problems. [The corn] starts to rot. It will mold. It will stand up. It will just, you know, do everything that you don’t want it to do.”

Haas said he considered the facility a “farm entity,” beyond OSHA’s jurisdiction. Under questioning by Department of Labor lawyer Denise Hockley-Cann, however, he acknowledged that no crops or livestock had ever been raised on the property.

In the Labor Department deposition, Haas described Consolidated as “a commercial grain buyer” and suggested that it bore responsibility for the job site. “Whatever has got to be done with the grain, Consolidated calls the shots,” he said.

Another partner, Willard Harbach, testified that he knew safety harnesses were kept on site but thought they were used to protect workers from falls, not to keep them from sinking into piles of corn. Both he and Haas said they were unaware that teenagers, some underage, worked in the bins.

“I now know that it’s illegal” to allow a 14-year-old to work in a commercial bin, Harbach said in a deposition taken by Durkin. Harbach added, incorrectly, that if Haasbach were a farm entity — which, in his eyes, it was — employing a 14-year-old “would not be illegal.” The Fair Labor Standards Act prohibits children younger than 16 from working in hazardous settings on farms.

Haasbach maintains that the families of Whitebread and Pacas are entitled only to workers’ compensation, not damages, because comp is the exclusive remedy for employees under Illinois law. Should this argument prevail, each family would receive only funeral expenses, capped at a certain amount. Gary Whitebread said he understood that Wyatt’s death would be worth $5,000 under workers’ comp – not enough to pay for the funeral.

In its answer to the lawsuits, Consolidated — whose representatives declined to be interviewed for this story — denied that it managed the Mt. Carroll facility, although it kept a small office there and had employees on site.

“The danger of ‘walking down grain’ without employing proper safety precautions was known to Consolidated Grain and Barge and its employees involved in grain handling and grain storage,” the company stated in a court document. “However, Consolidated Grain and Barge was not involved in grain handling in the operation of Bin No. 9 on the date of the occurrence.”

Consolidated contended that Whitebread’s and Pacas’s negligence contributed to their deaths, Piper’s negligence to his near-suffocation.

In his own deposition, Will Piper said there was no way the Consolidated employees could have missed what was happening: He and other workers were entering bins without harnesses. “They’re not stupid,” Piper said. “They watch us climb the ladders. What else would we be doing?”

Matt Schaffner told the Labor Department’s Hockley-Cann that he did the hiring and handed out work assignments at Haasbach. He testified that he cautioned Wyatt Whitebread, Alex Pacas, Will Piper and Chris Lawton to stay away from the center of the inverted cone inside any of the bins and to wear dust masks.

Schaffner spent about five minutes on safety training for each of the workers, he said: “It was a pretty straightforward job.” The harnesses hanging in the nearby shed weren’t discussed, Schaffner said.

Annette Pacas finds this inexcusable. “The harnesses that would have saved these kids were in a shed on the property, collecting dust and cobwebs,” she said.

Pacas’s sister, Catherine Rylatt, was so shaken by the accident that she formed the Grain Handling Safety Coalition and speaks regularly at agricultural conferences. She believes the Haasbach partners got off lightly.

“If the criminal case is gone, I think it’s a missed opportunity and it pisses me off,” said Rylatt, who lives near Dallas.

Carla Whitebread, a retired Army major and helicopter pilot, said she understood that when Consolidated owned the operation, prior to selling it to Haasbach in 2005, the company used its safety equipment. “And to the best of my knowledge, on the day that Haasbach took over they just quit doing it. I don’t know why they wouldn’t have done it,” she said. “And I can’t believe that they put the boys in there, being so young.”

Said her husband: “Anybody that worked in that office that knew kids were going into that bin without safety equipment should be held responsible. This is a multi-, multi-failure thing.”

‘Cost of Doing Business’

OSHA’s Michaels says the grain storage industry was on the agency’s radar even before Mt. Carroll. “We’ve been very, very hard on this industry,” he said. “We now do triple the number of inspections that we were doing four years ago. We continue to issue fines in excess of $100,000 over and over again.”

On May 29, 2009, 14 months before the Haasbach accident, 17-year-old Cody Rigsby suffocated in a grain bin in Haswell, Colo. Like Wyatt Whitebread and Alex Pacas, Rigsby became entrapped while walking down the grain; three other teenagers, exposed to the same hazard, made it out alive.

OSHA proposed a $1.6 million fine against the bin’s owner, Tempel Grain Elevators LLC of Wiley, Colo. The U.S. attorney’s office in Denver brought criminal charges against Tempel, and a plea agreement was reached in 2011: the company would pay $50,000 to settle the OSHA case and another $500,000 — all of which would go to Rigsby’s family — to close out the criminal case. It would serve five years’ probation.

OSHA characterized the case as a victory.

Victim advocate Ron Hayes, who believes the criminal case against Tempel should have resulted in jail time, sees it as a failure. Authorities “had the perfect opportunity to send a clear message out to the grain facilities and CEOs of this country that we will not stand by and let you continue to kill our workers,” he said.

For Hayes, it’s personal. Around 1:30 p.m. on Oct. 22, 1993, he got a call at the X-ray clinic he managed in Mobile, Ala. His 19-year-old son, Patrick, had suffocated in a Florida grain bin. When Hayes and his wife, Dot, arrived at the scene, around 5 p.m., “they had just taken Pat’s body to the morgue,” Hayes said. “And, you know, I was really surprised because the company was still working. And I felt like this was a major disaster and I couldn’t understand why they were still working and didn’t feel like there was anything wrong.”

Pat Hayes had been sent into the bin, operated by Showell Farms Inc., with two other men to “walk down” the corn – keep it flowing. A screw-like device known as an auger, used to move corn out of the bin and into trucks, was running at the time, loosening the pile. Pat Hayes sank in up to his knees, and his co-workers weren’t able to pull him out as the corn began to cover him.

Showell Farms paid a $42,000 fine for Pat Hayes’s death, 92 percent less than the $530,000 recommended by the OSHA inspector in the case. What began as willful violations were downgraded to “serious” ones, a move an OSHA reviewer later deemed inappropriate.

“After a careful in-depth review of this case,” the agency’s William Mason wrote in a confidential 1994 memorandum, “it is my strong belief that willful violations occurred.” The Labor secretary at the time, Robert Reich, publicly apologized to Ron Hayes.

Hayes left the X-ray clinic and became a full-time advocate for families of workers killed on the job. In that capacity he met with Michaels and three other top OSHA officials in October 2010, three months after the Mt. Carroll accident.

“And in that meeting, [OSHA chief of staff] Deb Berkowitz says, ‘Ronnie, can you help us figure out how we can stop these workplace deaths and injuries?’” Hayes recalled. “I said, ‘The only way you’re going to fix this is to put somebody in prison.’ ”

That has proven difficult. Under the Occupational Safety and Health Act of 1970, an employer who commits flagrant violations that cause or contribute to a worker’s death faces at most six months behind bars, a misdemeanor. By comparison, some environmental crimes – polluting a river or killing an endangered animal, for instance – are felonies.

“Sending a 14-year-old into a grain bin without proper safety equipment should be as unacceptable as discharging a pollutant into a waterway that kills fish,” said Jane Barrett, a former federal prosecutor who now teaches at the University of Maryland School of Law.

Labor Department data show that there have been at least 19 fatal and non-fatal grain entrapment incidents since 2001 that drew willful citations, which trigger consideration of federal charges. Eight of these cases were referred to federal prosecutors. Three resulted in charges and guilty pleas, though no jail time; one is still under review.

Gary Shapiro, the acting U.S. attorney for the Northern District of Illinois, had no comment on the Haasbach case, a spokesman said. Carroll County State’s Attorney Scott Brinkmeier declined to be interviewed.

Brinkmeier could have sought involuntary manslaughter charges against the Haasbach partners, said J. Steven Beckett, a professor at the University of Illinois College of Law.

“I think it’s a case that should have been prosecuted,” Beckett said. “Somehow, these deaths are just a cost of doing business.”

Chris Hamby contributed to this story.

Rethinking OSHA exemption for farms

2013-04-16T08:48:03-04:00

Should farms be regulated?

Corn storage on farms and in commercial structures doubled between 1978 and 2010, climbing from 5.4 billion bushels to a record 10.93 billion bushels, according to the U.S. Department of Agriculture.

With growth has come tragedy: worker entrapment deaths in corn or other grains — wheat, barley, soybeans — hit a recent peak in 2010, a Center for Public Integrity-NPR investigation found. In at least 51 incidents that year, 26 bodies were recovered. More than two-thirds of the entrapments occurred on farms, as did four of six incidents involving workers under 16.

Commercial operations are overseen by the U.S. Occupational Safety and Health Administration. Most farms aren’t — but perhaps should be, some say.

“We’ve got farmers who are building more space and bigger space, and it’s going to cause more issues,” Jeff Adkisson, executive vice president of the Grain and Feed Association of Illinois, which represents commercial operators, said at a grain bin safety conference in Cedar Rapids, Iowa, last fall. “I think it’s time for industry, for government, for all of us to pause and have the conversation again about who is exempt and who is not exempt from some of the standards.”

Adkisson and others in the grain-storage industry have said for years that the bulk of entrapments occur on farms. This is based largely on the work of Purdue University professor William Field, who has put 70 percent of the incidents with reported locations on farms, 30 percent at commercial facilities.

But the Center and NPR found 60 fatal and five non-fatal cases in an OSHA enforcement database that were not included in Field’s studies. All occurred at commercial operations.

In response, Field redid his numbers. He found that 52 percent of the entrapments with known locations took place on farms, 48 percent at commercial facilities.

The number of commercial grain bins in the U.S. has plummeted, from a peak of 15,305 in 1979 to 8,801 at the end of 2012, according to records kept since 1978. Commercial storage capacity rose from 6.99 billion bushels to 10.2 billion bushels during the same period.

On-farm grain storage increased from a low of 10.9 billion bushels in 1997 to 13 billion bushels today, according to records kept since 1987. USDA data show that about 306,000 farms have one or more storage structures, Field said. “Some of those may have 20 structures,” he said. “So we’re talking about several million facilities."

Randy Gordon, president of the National Grain and Feed Association, said his group and its state affiliates have redoubled safety efforts. “The OSHA standards, we think, are very adequate to address this danger,” he said. “There was an unfortunate spike [in deaths] that occurred but we have hopefully turned that corner now and we’re on the downward trend.”

Farms — most of which are unregulated by OSHA — remain the great unknown: Are their owners doing enough to prevent grain entrapments? Do they know how?

Bringing them into the fold wouldn’t be easy.

During a question-and-answer session at the Cedar Rapids conference, Tiffin, Iowa, farmer James Meade rose.

“The bottom line to me is, don’t pass a law that I won’t obey because I won’t obey it,” Meade said, clearly exercised. “I’ll tell anybody that. I’ll tell the OSHA guy that comes up to my place I’m not going to do it.” The statement drew murmurs of disapproval — and no applause — from the audience.

Meade’s sentiment was echoed by thousands of farmers in 2011 and 2012 in response to a proposed Department of Labor rule that would have limited the work activities of children on farms beyond existing restrictions on hazardous jobs — no driving tractors, for example. Federal law already includes age restrictions for grain-bin work on farms (no one younger than 16) and at commercial sites (no one younger than 18 for certain tasks).

The rulemaking, according to the department’s Wage and Hour Division, was driven by studies showing that “children are significantly more likely to be killed while performing agricultural work than while working in all other industries combined.”

This written comment was typical: “From your bureaucratic overreach in an area of family farming life that the government has NO business being in, you are trampling my rights … YOU don’t love my child any more than I do … You people are nuts!”

Chastened, the department announced the withdrawal of the rule last April. “To be clear,” it said in a statement, “this regulation will not be pursued for the duration of the Obama administration.”

Catherine Rylatt, who became a well-traveled grain-safety advocate after her 19-year-old nephew, Alex Pacas, died in an Illinois bin in 2010, has grown weary of employer rationalization and resistance.

At a conference in St. Louis last month, Rylatt tried to impart her safety message to an 18-year-old member of the Future Farmers of America. The young man pushed back, saying he didn’t think farmers would follow even the simplest of rules imposed by government.

“The kid is 18, and he’s already got the attitude of a 60-year-old farmer,” Rylatt said. “It’s scary, is what it is.”

CORRECTION: An earlier version of this story reported that no one under 18 may legally work in a commercial grain bin. In fact, while some work in commercial bins is off limits to those under 18, there is no blanket prohibition against 16- and 17-year-olds working in such facilities. All work in grain bins is off limits to children under 16.

Town divided over major employer's permission to pollute the air

Ash Grove Cement Co. — 2012-02-06T15:01:41-05:00

This story is a collaboration between the Center for Public Integrity, NPR and Slate.

"This person right here has cancer. His granddaughter has cancer."

Jeff Galemore pointed to house after house as he steered his white pickup through a tree-lined neighborhood in Chanute, Kansas, a town of 9,000 on the state's southeastern prairie.

"This gal has cancer," the 53-year-old oilfield worker continued. "The one across the street from where I live has cancer. Two houses south of me has cancer. But they repeatedly tell us there's not a problem."

Three miles north and east, part-time Lutheran minister and pecan grower Ken Lott wondered why it had been so quiet on his rural Chanute farm. "I used to have bullfrogs out here all the time," explains Lott, 71. It's been at least seven years since he's heard the melodic croaking.

At the opposite end of town, retired railroad worker Dale Stout, 80, lamented the deaths of seven hedge trees that were almost as old as him. "They planted it after the dust bowl," Stout said of the sturdy row of trees used as windbreaks and natural fences. "You don't just up and kill a hedge tree."

Stout, Lott and Galemore are worried that emissions from a century-old cement plant in Chanute are responsible for the human and environmental damage around them. They are among many Americans who may have cause for concern: Two decades after a Democratic Congress and a Republican president sought to bring under control the emissions of nearly 200 dangerous chemicals, millions of people continue to be exposed to them in the air they breathe.

But the object of citizen concern here — the Ash Grove Cement Co.’s plant — is different. It is not one of the 1,600 chemical plants, oil refineries, cement kilns and other facilities considered "high priority violators" of the Clean Air Act by the Environmental Protection Agency. Nor is it one of the facilities on an internal EPA "watch list" obtained by the Center for Public Integrity’s iWatch News and NPR that includes serious or chronic offenders with violations not formally and promptly addressed by regulators.

In fact, state and federal regulators express no concerns about the plant. It stays within limits on emissions, they say, and has not run afoul of the law. It is, by all appearances, a good corporate citizen. “We have a standard and we comply with it,” said a company vice president, Curtis Lesslie. Karl Brooks, the EPA regional administrator with authority in Kansas concurred: “The plant is in compliance,” he said.

It just happens to have permission to pollute.

Federal rules establish a unique class of polluter for cement kilns, like the massive one in Chanute, that burn hazardous waste for fuel. The law allows them to emit greater amounts of some toxic chemicals into the air than the hazardous-waste incinerators specially designed to burn the very same chemicals—including industrial solvents, aluminum-plant waste, and other toxic leftovers from the production of chemicals, pharmaceuticals, and oil.

When operating at capacity, the Chanute plant has discharged into the air more than 500 pounds of mercury a year, though the economic downturn has cut operations and mercury emissions the last three years. Mercury is one of the nearly 200 toxic substances singled out in the bipartisan effort to toughen the Clean Air Act two decades ago, and the EPA still struggles to limit it. Unlike hazardous waste incinerators, cement kilns built or rebuilt before 2005 can release 43 percent more lead and cadmium, as much as twice the hydrocarbons, close to four times the hydrogen chloride and chlorine gas, and twice the particulate matter, according to EPA standards. Altogether, 13 kilns in six states operate under those standards and can emit toxics at those levels.

Three newer or upgraded kilns, including an Ash Grove plant in Arkansas, can emit even more toxic pollutants under EPA standards — 15 times the mercury as hazardous waste incinerators, 18 times the lead and cadmium, twice the arsenic, beryllium and chromium, five times the hydrocarbons, more than four times the hydrogen chloride and chlorine gas, and four times the particulates.

Such elevated levels are not harmful, said EPA official Brooks. State and federal standards are “set with a margin of public health and safety.” Mike Benoit, spokesman for the Cement Kiln Recycling Coalition, said the limits are far more stringent “than what is necessary to protect human health and the environment.” Levels involved are small. “We're talking about nanograms. We're talking about micrograms,” said Benoit. “Millionths of a gram — billionths of a gram."

Downwind of the Chanute plant, some people aren’t easily reassured. They find it hard to fathom regulations that would allow large amounts of hazardous pollution. Monitoring is neither independent nor capable of detecting most toxins leaving the plant. Meanwhile, proof of harm in the community is elusive: As is often the case, there’s not any evidence that links the harm people perceive to the source they suspect. And, as in many other places with a polluter as a neighbor, there are indications of coziness between industry and government that makes average citizens wonder whether they are being heard or protected.

In Chanute, anxieties over a government-approved, toxic form of pollution that may be fouling the air, harming health, and poisoning the soil and water, have exposed deep divisions in a community that has long valued the century-old company on the edge of town as an employer, benefactor and source of revenue.

‘This is your human life’

It was supposed to be an informational meeting for concerned citizens at a popular park pavilion in downtown Chanute. Jeff Galemore, his five middle-aged siblings and his parents organized the event after deciding to take their concerns to their neighbors. On an October day last year, they fanned out across town, tacking notices to bulletin boards, dropping them on doorsteps and stuffing them into mailboxes. The flyers announced the gathering of the new “Chanute Environmental Rights Group.”

The Galemores describe themselves as conservative Republicans and they align with candidates and causes not considered sympathetic to tough environmental regulation. Jeff Galemore, who works with his dad in the family oil business, recently posted a sign on his front lawn announcing a meeting of a local Tea Party group. His sister, Selene Hummer, 51, owns a home decorating store and proudly displays a "Sarah Palin 2012" bumper sticker on the rear window of her pickup.

"We're not really tree-hugging liberals," said Hummer. "But when your environment becomes damaged or you feel that you're being contaminated — I don't care what party you're in — this is your human life."

How did it all start? “We noticed mold on the houses,” said Hummer. "We started noticing that people couldn’t breathe. We started noticing the high rates of cancer and we started thinking there was only one direction it could be coming from.”

The Galemores were already well-known in Chanute. One brother sits on the city commission; another is a county commissioner. The rest of the family also is active in local politics. With eight businesses between them — including a lumber yard, the oil wells, a pharmacy, a printing shop and the home decorating store — the family’s concerns usually had more to do with taxes and government spending.

They initially focused on Ash Grove because of the company's relationship with the city, including a multi-million dollar tax abatement and an industrial revenue bond issued on the company's behalf. That led them to the plant's use of hazardous waste for fuel — and questions about whether it might be harmful to health.

They were nervous and excited about that meeting in October, where they hoped to find out how many neighbors shared their concerns.

The family raised $1,000 to fly in an expert — chemist Neil Carman, a former inspector for the Texas Air Control Board and an adviser to the Sierra Club. Carman has focused on cement kilns in Texas and had even submitted comments to regulators challenging Ash Grove's first hazardous waste permit in 1996.

The Galemores and Carman found the park pavilion teeming with dozens of people, filling most of the folding chairs and lining the room’s perimeter. Most were not there to listen. Their T-shirts read "We are Chanute" and "Real Families, Kansas Jobs." Some were Ash Grove employees and their families. Others were community supporters of the plant.

There was heckling when the Galemores or a few allies criticized Ash Grove and voiced concern for their health and the environment. Carman, intimidated by the jeering crowd, remained in his seat, silent.

Recalling that day, Selene Hummer’s smile morphed into hard lines. “We were outnumbered but we stood our ground."

That November, an election campaign involving one of the Galemore brothers grew bitter. His opponents merged the political issues and the environmental effort. Ads and letters in The Chanute Tribune accused the family of trying to shut down the plant. The Galemores were labeled "the Chanute al-Qaida" and the family said there were boycotts of every Galemore business. Even friends started to shun them, the Galemores said.

Elsie Galemore, the family matriarch, said she never felt unsafe in Chanute until the day after the meeting, when threatening letters overflowed the family’s mailbox, and spilled into the yard.

The Galemores blame that fierce reaction on the powerful links between the city and the company. In addition to its $7.4 million annual payroll, Ash Grove's charitable foundation contributed $1 million to the new sports complex at Chanute High School. The company is the single biggest customer for the city's municipally-owned power company, paying $14 million a year in electric bills.

"They've really been a strong pillar in the community for many, many years," said Chanute city manager J.D. Lester. "They pay a very good wage … and they've been a very good corporate citizen.“ When asked if he thinks Chanute is polluted, Lester answered with a flat "no." "If I truly felt like it was unhealthy to live in Chanute and an industry was making problems," Lester said, "I'd do something about it because that's my job."

"I do not have a high level of concern because I trust that the regulators … do their job effectively," Lester added. "And I just don't, at this time, feel like that threat exists."

Industry loophole?

The use of cement kilns to burn hazardous waste dates back to the days of waste dumping disasters such as Love Canal in New York and Times Beach in Missouri in the 1970s and 1980s. Burial of hazardous waste was abandoned and incineration was the only alternative. Specially designed incinerators took time to build, and cement kilns already operated at the kind of heat — 3,000 degrees — needed to destroy hazardous materials. Meanwhile, the industry could replace expensive oil and coal by using the hazardous waste as fuel. And firms generating hazardous waste would pay the cement companies to take the waste, transforming fuel costs into revenues.

By the 1980s, hazardous waste was used for fuel at the rate of a million tons a year, according to the Cement Kiln Recycling Coalition. The practice was largely unregulated at first; Ash Grove's Chanute kiln became the first in the country to receive a hazardous waste permit, in 1996. Today, a dozen cement plants in eight states have 16 kilns burning hazardous waste. Then and now, the industry and the EPA refer to the process as recycling — because cement kilns and other industrial facilities "recover" the energy value in the waste when it's burned.

Pollutants include metals such as mercury and lead, which either vaporize or escape as particulate matter, and carbon compounds that are incompletely burned. In the atmosphere such pollutants create new compounds like dioxins and polycyclic aromatic hydrocarbons. This “highly toxic cocktail,” as chemist Neil Carman puts it, contains “some of the most dangerous substances that we produce.”

Amid the new demand for hazardous waste disposal, Congress carved out regulations for specific types of facilities so that hazardous waste incinerators and cement kilns burning hazardous waste would each have their own emissions standards. The industries argued that the facilities have different purposes and operating conditions and shouldn't be regulated identically. Kilns are far larger than incinerators and produce cement as a product. Hazardous waste incinerators just incinerate.

But the decision to regulate the two types of facilities differently is “a loophole for the cement industry," said James Pew, a lawyer for the environmental group Earthjustice. "The problem with cement kilns that burn hazardous waste is that they're not designed to burn hazardous waste."

Some environmental groups and people in Chanute are concerned that the differences in regulation mean emissions from Ash Grove’s cement kiln can drift over the community, with consequences for health that range from respiratory and skin problems to special issues of exposure for children.

The mercury emissions from the Chanute kiln are especially troublesome to environmental consultant Craig Volland, who advises the Kansas Sierra Club on air pollution issues and also helps the Galemores navigate state and federal regulations and records.

Volland said that the Chanute plant was the second largest emitter of mercury in Kansas in 2004, one of the years the mercury emissions reached 500 pounds. "That would compare to the 170 pounds of mercury a year at a major coal-fired power plant," Volland said.

Mercury travels great distances, persists in the environment and accumulates over time. EPA is so concerned about increasing mercury concentrations across the country that it has proposed tougher emission standards for coal-fired power plants and cement kilns. The agency wants a 92 percent reduction in mercury emissions at cement kilns alone.

"Mercury can damage children's developing brains," the EPA stated in an August, 2010 news release about the proposed cement kiln standards. "Mercury in the air eventually deposits into water, where it changes into methylmercury, a highly toxic form that builds up in fish."

"In many freshwater lakes in the United States, we've already reached the threshold of harm of methylmercury in fish tissue," added Volland. "So any additional mercury that's emitted from any facility … has the potential to increase the health impact."

If enacted, the EPA's new mercury standards for cement kilns would not apply to kilns that burn hazardous waste because of the unique standards and regulatory process that govern each type of facility.

Without more of a ‘scientific basis,’ regulators unable to act

Ash Grove's mercury emissions worried the Galemores and others in Chanute, as did the seemingly permissive emissions standards for cement kilns burning hazardous waste. So they urged state and federal regulators to conduct independent testing of air, water, sediment and fish.

"We have no other protection than you people," pleaded family patriarch and oil driller John Galemore during sometimes testy meetings. "You are our front line and our defense. And all we're asking is that you assure us with testing that we're safe."

State and federal regulators didn't embrace such concerns — and neither did some of the Galemores’ neighbors. When the family traveled to EPA's regional headquarters to discuss possible testing, Ash Grove supporters rallied employees, their families and company champions. A busload of people wearing the same "We are Chanute" T-shirts picketed and marched in front of the building while the Galemores and their allies met with regulators inside.

The protestors were eventually invited in to participate. Officials with the EPA and the Kansas Department of Health and Environment (KDHE) tried to explain the complex emissions standards and how they assure safety of people downwind. The standards are arcane and hard to understand, except perhaps by the small circle of regulatory officials, industry executives and lobbyists, scientists and lawyers fluent in the nuances. Those standards establish a complicated formula based on the precise mixture of hazardous wastes fed into the kiln, operating conditions of the kiln, emissions measurements during test burns, and computer modeling. The result is a prediction of expected exposure downwind of specific kinds of people in specific places.

As long as Ash Grove follows the formula, the regulators explained, the plant is deemed in compliance and considered safe.

But the standards allow more emissions of some toxics from kilns than from hazardous waste incinerators. They permit what adds up to significant amounts of mercury — which the EPA is trying to come close to phasing out at cement kilns that do not burn hazardous waste. And the standards were based on what the cleanest plants achieved with existing technology — not on what might be desirable or even possible with new pollution control methods.

The Galemores pointed out that the only real-time, independent monitoring of actual emissions in Chanute involved a single detector a couple of miles south of the plant on the roof of KDHE's regional office. It measures particulates, extremely tiny particles of dust, acids, organic chemicals and metals that "affect the heart and lungs and can cause serious health effects" once inhaled, according to EPA. But it doesn’t pick up eight other toxic chemicals and gases that are meant to be kept under control at incinerators and kilns.

The monitor is not even in an ideal location for detecting particulates from Ash Grove. State environmental officials point out that its purpose was not intended to track emissions from Ash Grove. Because of the way winds tend to shift in the area, the monitor often won’t detect what’s released from the plant.

NPR asked EPA's Brooks to reconcile the plant's mercury emission levels with the agency's clearly stated — and well-publicized — goal of reducing mercury pollution at cement kilns and power plants. In his answer, Brooks focused only on the existing rules and did not acknowledge any conflict with EPA's strong desire to cut mercury emissions dramatically. "Every test that's been done, every inspection that's been done,” Brooks said, “verifies that there is full compliance with every relevant part of the permit. Including the mercury part.”

Coziness with industry?

The Galemores persisted. They wanted independent testing and they didn't ease up on the pressure. State environmental officials responded at first by updating a regional health study prompted by community concerns after Ash Grove first received its first hazardous waste permit 15 years ago.

The review might have been reassuring; its analysis of cancer and hospital records found no excessive cancer rates in the region. But the Galemores said the study may have missed some cancers because some local people travel to distant hospitals in Wichita, Kansas City and Houston for treatment.

The KDHE study did find a slightly higher than expected rate of asthma cases that required hospital visits. That fit pharmacist Nick Galemore's anecdotal experience.

"We see a high volume of nebulizer medication, inhalers, lots of lung issues here," especially for children, Galemore reports. "I believe there's something that's not being detected or not being looked into."

In a separate study in 2006, the Kansas environmental agency found an elevated level of mercury in a fish sample taken in the creek that runs right past the plant.

This summer, the agencies finally agreed to begin testing air, water, sediment and fish in the Chanute area. The community is awaiting results, but the Galemores and others remain skeptical. They worry that a misplaced monitor or misinterpreted sample will jeopardize the accuracy of the effort. And they’re bothered by a perceived coziness between Ash Grove and state regulators.

Ash Grove vice president Lesslie was once a state regulator himself. In fact, he was the state official who drafted the company's first hazardous waste permit in 1996. Lesslie later worked elsewhere for seven years, with a consulting firm, before joining Ash Grove in 2007.

NPR also discovered in state records a recent email exchange involving Lesslie and William Bider, the Kansas director of waste management. In August of last year, when EPA announced its proposed new emissions standards for cement kilns, Bider sent the EPA news release to Lesslie for his analysis.

Lesslie responded, noting "extreme impacts on the industry."

There’s nothing unusual about a regulator seeking comment from a potentially affected company. But Bider wrote another email to two colleagues, including one heavily involved in Ash Grove matters, according to other agency emails and documents reviewed by NPR.

"I thought you might be interested in reading this note from Curtis Lesslie in response to another major EPA air rule that will help put our cement plants out of business or at a minimum result in severe inflation," Bider wrote. "EPA is out of control as far as I'm concerned."

Such emails don’t surprise environmental consultant Craig Volland. "I think it's crossing the line a bit for a manager in KDHE to take the position that this is not what [EPA] should be doing," Volland maintained. "That said, KDHE is always under enormous pressure from the politicians in Kansas, who are very conservative. … [Regulators are] always being pressured to be accommodating to the industries that they regulate."

John Mitchell, Bider’s boss as director of the environment division at KDHE, was not happy about the email when it was provided by NPR, but he did not seem alarmed.

"It disappoints me to see our staff putting something like that in writing," Mitchell said. “It appears to me that Bill has indicated that this is his personal opinion but our position certainly is that if changes come down the pike, we will consider those … as we regulate the businesses in Kansas. I have no doubt in my mind.”

NPR then asked Mitchell why concerned people in Chanute would trust KDHE enforcement if a key state regulator is so openly critical of EPA, the state agency’s enforcement partner.

"We don't always see eye-to-eye on everything," Mitchell responded, in describing the KDHE relationship with EPA. "I don't know what else I can really say on that front."

All EPA's Karl Brooks would say about the email is that "KDHE has held up its end of that partnership bargain."

Brooks also predicted that the new testing in Chanute will allay fears in the community.

"You'd like to make sure that everybody affected by emissions from a permitted facility understands what's being emitted and has some confidence that the permit is doing what it's designed to do," Brooks says. "That would be the hope, that the evidence that's supplied to people will give them that confidence."

State regulators also doubt the new testing will justify the concern and pressure they're getting from the Galemores and others in Chanute.

“We’ve done far more here in Chanute to investigate the concerns that these folks have had than we typically do based upon the lack of concrete documentation that there’s an existing problem,” Mitchell says. "If we really don't find some sound scientific basis to delve deeper, it's very hard for us to do more."

Activists ‘tore this town apart’

Back in Chanute, the Galemores focus on the rail cars of hazardous waste that roll right through Chanute's quaint, red-brick downtown on the way to the plant. They show visitors plastic bags filled with rusted, palm-sized flakes collected from their yards. They point to fine white dust on their pickups and black soot on their homes. And they tick off a misery list of illnesses, wondering whether it's all connected to Ash Grove's cement kiln and the hazardous waste it uses for fuel.

“They’ll never be satisfied with any answer,” said David Orr, who challenged one of the Galemore brothers in a county commission election. Orr had 300 of the ‘We are Chanute’ T-shirts printed for the first meeting at the park. “When I saw the flyer for the meeting, I decided to do something,” he said. “They tore this town apart, [and] somebody had to stand up to them.”

Despite their determination, the Galemores show signs of weariness. "It is not good for somebody to continually be battling, and be battling, and be battling," Hummer said at her parents' dining room table, which was covered with file folders, newspaper clippings, photographs, maps, boxes of documents and copies of vicious emails and letters.

Some family members now talk about selling their businesses and leaving the town they've called home for more than 40 years. Hummer has even asked environmental activists to name unpolluted places that might make good new hometowns.

Some Ash Grove supporters might be relieved if the family left. One of the nastier letters that littered Elise Galemore's porch after the contentious meeting last year suggested the entire family pick up and leave the country.

"This would be a perfect solution for the Galemore family and entourage," the anonymous letter said. "Wouldn’t it be great to leave the imperfections of Chanute and its citizens behind … and relish the perfection of Galemoreville in the Greek Islands?"

"It's getting real close," Hummer says with a sigh, "where we're now saying 'enough.'”

This story was reported by freelancer Sarah Harris for the Center for Public Integrity and Slate, and by Howard Berkes, NPR rural affairs correspondent.

Community coated in black mist — until citizens fought back

China Synthetic Rubber Corp — 2013-04-19T14:36:05-04:00

PONCA CITY, Okla. — Here, in the land of big skies and broad terrain, the air pollution flowing from local industry was so palpable residents could touch it. On their hands, on their shoes, on their pets, their clothes, their cars, their windows, their grass, their doors, their children’s toys.

For more than a decade, residents of this city of 25,000 filled the local Department of Environmental Quality office with so many complaints they required 20 binders to hold. Those complaints, some coming from members of the Ponca Tribe of Indians living nearest the plant, blamed Continental Carbon Co., manufacturer of carbon black, a product used in tires, rubber and plastic goods. The plant manufactures carbon black from petroleum refinery residual oil, and the finished substance is a form of almost pure carbon, classified as a possible carcinogen.

Homeowners said a black dust cascaded from the plant and blanketed their lives. One mother insisted her child ride her bike, with training wheels, inside the house to avoid the carbon black. A teenager kept his prized Dallas Cowboys jersey wrapped in a plastic bag inside the house to avoid black smudges. Others complained their dogs’ feet turned black walking through town; when they cleaned the dogs, the tub developed a ring of black. White tennis shoes changed color.

While localized air pollution has tainted towns across the country with haze, pungent odors, and, frequently, less visible threats, few communities visited by reporters for the Center for Public Integrity’s iWatch News and NPR have been smothered like the residents of Ponca City, two hours upstate of Oklahoma City. The small city is named after Ponca Native Americans who lived in the area prior to Oklahoma’s massive Cherokee Outlet Land Run of 1893, in which more than 100,000 settlers literally raced to stake their claims to homesteads.

Enmeshed with carbon black, the people — from Ponca Tribe members to other homeowners to City Hall itself — fought back in court. “You run your finger along something and you come up with this black crud on your finger, inside even,” said City Attorney Kevin Murphy, whose city was among the plaintiffs settling cases with the plant over the last five years.

Chemicals deemed so harmful that Congress targeted them in legislation 21 years ago persist in hundreds of communities across the United States, as iWatch News and NPR are reporting in an ongoing series of stories. These poisoned places largely have been neglected by government agencies responsible for safeguarding public health.

The quest to control toxic air pollution here tells a larger story of how people in some of the hardest-hit communities, convinced that regulators aren’t protecting them, take matters into their own hands, sometimes collecting their own air samples at factory fence lines. In Ponca City, it meant challenging the state agency, the Department of Environmental Quality, over carbon black and ultimately demanding that the courts take action.

Regulators had to see source of ‘fugitive’ dust

To this day, Houston-based Continental Carbon, Ponca City’s third largest employer, denies it caused most of the pollution. “Any issues that are identified in the plant operation are immediately addressed,” Dennis Hetu, Continental Carbon’s recently appointed president, said in an interview.

State regulators say they have been diligent and taken enforcement steps whenever necessary and allowed by their policies. “DEQ spent a considerable amount of time and resources investigating complaints regarding Continental Carbon, as reflected in our records,” Skylar McElhaney, a spokeswoman for the agency, wrote in reply to questions from iWatch News and NPR.

Yet the DEQ’s Ponca City office became literally overrun with complaints. And the state’s own policies hampered efforts to curb the pollution: For many years, DEQ files show, the agency would bring a case only if its inspectors could witness with their own eyes the “fugitive dust” leaving the plant. Evidence of black dust found on residents’ property was insufficient.

“They said as they interviewed people and took complaints, unless it happened while they were here — and it didn’t — it didn’t happen. They didn’t have the resources to take samples and to go back and test it,” recalled Richard Stone, the city’s mayor from 2003 to 2007.

For a period in 2003, records show, the agency told residents it could no longer send inspectors to visit homes each time they encountered the carbon black. There were simply too many complaints to process as the DEQ searched for a solution. Even after inspectors turned out again, complaints — about the carbon black and regulators’ response — continued to roll in.

“DEQ continues to ignore violations that contribute to the air pollution still plaguing Native Americans, farmers, and others living in the area of the company’s Ponca City plant,” the Ponca Tribe and officials with the union representing plant workers challenged the state environmental office in 2004. The DEQ’s approach, they said, “does not represent diligent enforcement, allows Continental Carbon to profit from its violations, and fails to discourage future violations.”

Many times, the state agency indeed spotted black particulate matter on residents’ property. But the cases nearly always ended there, case after case, year after year — 726 complaints logged from 1993 to 2011. Its inspectors didn’t see the fugitive dust leaving the plant; the company said it was not at fault; and the complaint binders fattened as residents’ frustration grew.

‘A complete nightmare’

It took a string of lawsuit settlements before the wave of complaints about carbon black emissions finally began to ebb. The first two cases were filed in 2005, one by town residents, businesses and City Hall, and another by the Ponca Tribe of Indians. In 2006, the plant, while denying that it caused the pollution, settled with City Hall for $400,000 and residents for about $8 million. In 2009, again without admitting any link between its plant and the black matter, Continental Carbon Co. paid a $10.5 million settlement to the Tribe. Citizens brought a third case in 2007 against Continental Carbon, later adding refinery ConocoPhillips as a defendant. The case was settled for an undisclosed amount in 2010. A fourth case, brought by other homeowners in 2009, reached an $800,000 settlement.

It wasn’t until 2006 — well more than a decade after complaints started filling those binders — that DEQ changed its policy on fugitive dust “from having to see it cross the property line,” as agency spokeswoman McElhaney put it, “to if there is clear evidence of fugitive dust crossing the property line, such as dust on cars.” That change came a year after the first two lawsuits were filed.

Since 1995, when Continental Carbon bought the plant from a predecessor, the agency has fined the company $25,437, and ordered it to make environmental improvements costing another $127,631.

Residents point to a striking contrast — $20 million or more in settlements versus the $25,437 in state fines — as proof they had to take matters into their own hands.

“Living with that plant was a complete nightmare,” said Karen Howe, who was among the lead plaintiffs in the Ponca Tribe’s lawsuit.

When Howe moved into a 3-bedroom house just across the fence from the plant, she was a single mother in search of an affordable place to live.

“The dust came into your home. I couldn’t open my windows on the east side of the house because it came in. It came in anyway. … It was a constant battle with trying to keep the carpet clean, the floor clean, the kids clean,” Howe said. “You couldn’t have a garden. I tried to get the kids a couple of pets, of course they were outside dogs. As soon as they were outside even three or four days you couldn’t even pet them because your hands would be all black. If they rubbed up against you it would be black on your skin and on your clothes.”

Company ‘not going to fight’ rules

The company said its testing has shown that more than 99 percent of the black matter came from other sources. Continental Carbon did not grant a request from iWatch News and NPR to release its test results, saying the information was confidential and gathered as part of its lawsuit defenses. The company also produced a video, What’s the Black Stuff.

“In most instances, the samples scientifically evaluated in recent years have consisted of mold, mildew, biofilm, minerals in the soil, rubber dust from the friction between tires and highways, and byproducts of incomplete commercial combustion activities, rather than the highly engineered carbon particles that make up carbon black,” the company wrote in a statement.

Continental Carbon blamed a bitter union lockout with fanning the flames of protest. It said it settled lawsuits to move its business forward and is responsive to problems. The company said it has spent $10 million over the last decade upgrading the plant, and that it is pursuing a better relationship with the community.

Hetu said the company puts environmental compliance behind only safety. “We replaced millions of dollars of emission controls without being required to,” Hetu said. “We’re ahead of the game. We don’t wait for them to come in and find it. We’re not going to fight those laws; we’re going to comply.”

Carbon black is elemental carbon produced by incomplete combustion or thermal decomposition of heavy petroleum products or other hydrocarbons. Its physical appearance: black, finely divided pellets or powder. According to the International Carbon Black Association, a manufacturers’ group, it is among the top 50 industrial chemicals manufactured across the globe, used in tires, rubber and plastic products, printing inks and coatings. Ninety percent is used in rubber applications.

It is classified as “possibly carcinogenic to humans” by the International Agency for Research on Cancer. “Studies have demonstrated … that regular exposure to carbon black and other poorly soluble particles may play a role in declining lung capacity,” the ICBA says. Carbon black dust, or powder, can dry the skin. “Repeat washing may be necessary to remove carbon black,” the ICBA says. Under permit, the government limits the amount of particulate matter and other toxins the plant can release in production of carbon black.

In Ponca City, emissions are lower since the legal cases were resolved, and fewer complaints have trickled in.

Still, the company remains what the EPA calls a “high priority violator” — among more than 1,600 sites the agency believes need urgent attention, EPA records show. Continental Carbon calls that designation “misleading” and said: “We understand that all carbon black producers have been designated as HPVs.”

This July, the DEQ negotiated a $4,625 fine from Continental and $13,875 in cleanups to settle alleged violations of the Oklahoma Clean Air Act.

There are still reports of carbon black contamination from some people living close to the plant. In early October, Wally and Wilma Schatz, who live about a mile west of the facility, showed an NPR reporter what they believe to be carbon black on their picnic table. Wally rubbed his fingers across the table and they were stained black afterwards.

Files of the state environmental agency, obtained by iWatch News and NPR, document multiple plant breakdowns over the years that allowed carbon dust to reach the air. In one incident in 2009, the company sent out workers with pressure sprayers to clean off a car and home close to the plant. Inspectors documented an equipment malfunction that caused carbon black to escape the plant.

“It was a constant cleanup. It was bleach and water. It was always, bleach and water,” said Jonathan Thomas, a father of three and transit director for the Ponca Tribe of Indians. “You couldn’t have white clothes. You just couldn’t have nothing nice.”

Scotty Simpson Jr., a member of the Ponca Tribe business committee, said he grew up constantly aware of the slimy black substance. He’d wash his 1997 white Ford truck, only to find it dusted with black the next day. He learned to keep extra care of his valuables.

Simpson grew up a diehard Dallas Cowboys fan, proud owner of a #22 jersey — Hall of Fame running back Emmitt Smith. He kept the jersey in a plastic bag inside his house to protect it. When he went out, he was careful not to touch anything.

“Once you got carbon black on it, it was done,” Simpson said.

20 binders of complaints

The complaints — spelled out in the 20 binders, lawsuits, state inspection reports and interviews — speak of a constant misery in the battle with carbon black. And they show how, time and again, the state regulatory agency closed the books with no sanctions.

“They just really ignored us, and got mad when we told them they were ignoring us,” said Jesse Beck, environmental manager for the Ponca Tribe of Indians.

July 1, 1995: A woman complains of black powdery substance on her property, and the DEQ inspector finds a fine black powdery solid on the sides of the metal shop building, a motorcycle trailer, outdoor furniture and toys. The inspector sees no emissions from the plant, and the company reports no recent “reportable excess emissions,” according to the inspector. The case is closed.

September 20, 1997: A caller complains carbon black was dumped in the night, stating, “It is in the house, and the floor is black,” state files show. An inspector said the company blamed winds for sending fugitive dust into the air. “I was unable to confirm or refute this statement,” the state concludes. “We have, therefore, closed this complaint file.”

October 14, 2002: A resident reports, “Carbon black is everywhere,” and the inspector finds fine black powdery solids on the fence and lawn furniture. “I saw no emissions or fugitive dust … at time of investigation,” the inspector records in the file. “No violations were observed,” the agency writes back to the resident. “Therefore, we consider the complaint resolved.”

November 2002: A resident says “carbon black dust is almost continuous.” The inspector reports no visible emissions and closes the case.

May 29, 2003: Bud Vance, a longtime resident who would file many complaints, says he cleaned his property the night before — only to find the picnic tables and other outdoor items covered with carbon black in the morning. “Black dust was even inside the house.”

By that June, DEQ was so backlogged chasing complaints it decided to stop visiting homes.

“I am still in the process of looking into what, if anything, this agency can and should do under the law concerning the recurring carbon black dust complaints. Because of this, you should not expect the same course of action that you are accustomed to,” Jimmy D. Givens, the agency’s general counsel, told Vance and other residents who had filed complaints.

“Until we reach a final conclusion about what can and should be done, there is no real purpose to be served by repeated contacts and visits to discuss and observe the same problem.”

Meantime, residents are “welcome to continue to let us know when you have a problem … but just be aware that the routine of automatically sending someone out has changed.”

The complaints continued to pour in.

June 10, 2003: A radio station technician, working on a tower, asks if someone was spray painting. He reported that “he was being ‘dusted’ with very fine black powder,” state files show. The caller says one of the three full-time station employees is often sick and asks “if the powder is detrimental to a person’s health and if it could be connected with the ill employee.”

More than two months later, the department’s complaints coordinator, Lynne Moss, writes back. “We were not able to verify a fugitive dust violation during any of the inspections of the facility. However, any particulate matter, including carbon black, has the potential to aggravate individuals with pre-existing respiratory conditions.”

November 24, 2003: A resident wakes up on a Saturday morning to carbon black all over the property. “I wiped a table with my finger, and it was streaked with black dust,” writes an inspector. But again, no enforcement action follows. “Although my staff observed black particulate matter on your property, they could not identify any violations at Continental Carbon as being the source of the matter,” writes back Rick Austin, environmental programs manager. “Therefore, I am closing your complaint. Please feel free to contact this office if we can be of further assistance.”

January 5, 2004: Vance says he noticed a strange “taste” in the air at 5:30 on Saturday evening and that when he got up the next day, “there was lots of black dust all over everything again.”

Ten days later, the DEQ sends a warning letter to Continental Carbon, reporting that “material that appeared to be carbon black had settled off your property” during neighborhood inspections. “Also,” the state wrote, “spilled and/or loose carbon black material at your plant site had not been cleaned up in a timely manner.”

Soon, the state informs Vance that the company has “implemented housekeeping practices that should prevent future problems. … Since Continental Carbon has corrected the violations, we are closing your complaint.”

June 24, 2004: A resident “said her granddaughter’s feet were black from walking outside.” The inspector finds black particulate dust on the front porch, porch rails and a vehicle parked under a carport. But the company reports no upsets. Another closed case.

June 28, 2004: A caller reports carbon black in the house, in the car, all over. She says her pet’s feet turn black outside. An inspector finds black particulate matter on the porch railing and on the vehicle. The company says no upsets took place, and the state said Continental Carbon has implemented “additional procedures to prevent fugitive dust from leaving the property.” The case is closed.

Files document plant breakdowns

Yet Oklahoma files from that year, 2004, spotlight breakdowns in housekeeping at Continental Carbon that, the reports say, allowed carbon black to reach the air. Simultaneously, DEQ files revealed, 2004 and 2005 produced the largest crop of resident complaints.

On March 9, 2004, a state administrative compliance order cited “piles of newly spilled carbon black” near a railroad track, and other piles gathered in rail car storage and loading areas during an inspection the previous October. “By allowing carbon black to become airborne and pollute the air of the state,” the Oklahoma DEQ said, the company violated state pollution control laws.

Another state report that fall documented piles of exposed carbon black unearthed during inspections. A DEQ inspection August 20, 2004 found five accumulations of carbon black “that were exposed to the ambient air and were not in the process of being cleaned up.” A visit six days later found a pile of particulate material that had drifted near the pelletizer building. “There were no personnel cleaning up the pile.” Four days later, during an inspection August 30, the state found three accumulations of carbon black exposed to ambient air and not cleaned up.

More visits in September found more piles of carbon black, exposed to the elements.

Those findings led to a November 2004 consent decree between the state and company in which Continental Carbon agreed to new measures to identify and clean up leaks and spills that could produce fugitive dust and to pay a $5,000 fine. Continental Carbon did not admit fault, but Oklahoma officials “identified a long ongoing condition of air pollution,” state records say.

The complaints continued flowing in.

August 18, 2004: A resident says she put a plastic cake plate on the front porch three days earlier — “and the cake plate is covered with carbon black today.” An inspector finds black particulate matter covering the outdoor furniture, but spots no excess plant emissions. “Please contact this office if we can be of further assistance,” he writes.

August 25, 2004: Resident Glenda Richardson says she walks her dogs every morning “and every morning have to wash the dogs’ feet in the bathtub to scrub the carbon black off. … Then you have to scrub the tub to get it off the tub.” The inspector finds black particulate matter on the house siding, but the company reports no emissions, and the agency finds housekeeping in order. On September 16, 2004, Richardson is told the complaint file is closed.

Others say carbon black is in the swimming pool, on the screened in porch, all over.

The Tribe takes its case to court

Finally, residents had had enough.

On January 31, 2005, the city and several residents sued the plant alleging the carbon black dust particles damaged their property, including government-owned buildings. “Since acquiring the plant in 1995, the defendants have steadily increased the level of carbon black production,” the suit contended, “bringing the production of the plant to over 300 million pounds of carbon black annually.”

The substance, the suit said, “is black and sticky. Carbon black is very difficult to wipe or clean off of human skin and it can be impossible to clean off of objects such as buildings, homes, cars, boats and clothing.” This “nuisance dust” can “travel long distances in natural air currents,” the suit said.

The plaintiffs contended the plant hid its level of pollution, “manipulating test results and plant monitoring in order to claim that their plant is not the cause of this black dust nuisance.”

Stone, the mayor at the time, said filing suit against a big employer was not politically popular with local industry. “They didn’t think we ought to sue or join in the lawsuit against one of our major employers,” Stone said. “It didn’t look like a real good thing to do politically but I felt we ought to answer the complaints of the citizens of the community who were being damaged.” Continental Carbon and its parent, the China Synthetic Rubber Corp., denied the allegations and said they weren’t the responsible parties but contended the pollution was triggered by other sources including a longstanding city refinery operated by ConocoPhillips. The refinery said it was not at fault.

On April 20, 2005 came the next case, with the Tribe suing Continental Carbon and its parent company, which since combining in 1995 had become the fourth-largest producers of carbon black in the world. “The Ponca people wish to bring about a healing of the air, land, and water in what has become the Tribal homeland,” according to a later filing in the case.

The suit sought a halt to the pollution, compensation for those impacted and “future medical monitoring for those who have been exposed to the pollution from the facility.”

“Vast quantities of pollutants — including carbon black — have been and continue to be released from the facility into the environment,” the suit said. These pollutants “have continuously and intermittently worsened over time, and have worsened to the extent that they interfere with the plaintiffs’ abilities to use their properties.”

Parent China Synthetic “denies that it releases pollutants from the facility.”

Over the years, residents at times complained of breathing problems linked to the pollution. “It is so thick that you can hardly breathe,” one resident complained in 2000.

Continental Carbon acknowledged “some impacts to neighbors living very near the plant” but denied it caused any harm to the tribe or other plaintiffs, and said no evidence reveals health impacts to residents or workers. As the cases wound through the courts, the state environmental agency found continuing problems with plant operations amid unannounced inspections. A visit in December 2005 found “five open trash boxes with loose carbon black in them,” state records show.

In January 2006, an inspector reported, “On the east side of Unit #4 there were pills of carbon black falling out of the air.”

Two weeks later, an inspector spotted “a mix of carbon black and gas leaking from a pipe” at the plant. “A crew was in the process of trying to patch the leak with a sock around the pipe,” said the report from the DEQ’s Air Quality Division.

In 2007, after citing excess emissions, the state closed its largest case against Continental Carbon. The company agreed to pay a $15,812 fine and installed $113,756 worth of environmental cleanup projects.

Two years later, Ponca Tribe plaintiffs secured a settlement many times greater, $10.5 million. The company agreed to instantly check all complaints and send material for testing.

“Continental Carbon Company is demonstrating strong character and ethical behavior in settling these lawsuits. While we strongly disagree with the claims of the plaintiffs … settling these cases allows our company to focus on managing our business in a highly competitive environment,” said a company statement issued at the time of the settlement.

In 2009, the year of settlement, plant emissions reported to EPA dropped drastically, records show.

The Ponca Nation received a $320,595 check, and individual homeowners thousands depending upon the size of their land and their role in the case. Lawyers, who logged $1.8 million in expenses and 15,000 hours, received 40 percent.

The largest individual payouts went to 11 homeowners living closest to the plant, with the company spending $300,000 each to move them to new homes.

That ground today is covered with grass.

“I almost blame the government for allowing those homes to even be there. They should never have been built there,” said tribe member and plaintiff Amos Hinton.

Hinton, a descendant of Ponca Chief Standing Buffalo, recalls spotting black residue even at the gravesite. “My interest was to stop the polluting on my family’s land — the desecration of this man’s burial site,” Hinton said.