Pollution from The Center for Public Integrity

'Upset' emissions: Flares in the air, worry on the ground

Exxon Mobil Corporation — 2013-05-21T12:56:19-04:00

BATON ROUGE, La. — Shirley Bowman noticed the smell after 8 a.m. on June 14, 2012, her 61st birthday. In Baton Rouge, where the petrochemical industry dominates the landscape, foul odors resembling burnt rubber or propane are perennial. But this odor, caustic and potent, seemed especially foul — “like some sort of chemical,” she recalls.

Bowman found her daughter crying over a migraine. Her neighbors experienced headaches, dizziness, nausea. One family reported a toddler son coughing up phlegm; another, an elderly father collapsing on the floor. She soon suspected the cause: A leak of “steam-cracked” naphtha, a liquid mixture of volatile petrochemicals, occurring at the ExxonMobil Baton Rouge petrochemical complex a half mile away.

Four hours earlier, Exxon operators detected an odor in the East area tank field, and discovered a “bleeder” valve on Tank 801 dripping naphtha into a sewer. The leaky valve dumped 411 barrels into the underground system, company records filed with the state show. The liquid traveled a mile before pouring into a separator pit, vaporizing along the way, and releasing tens of thousands of pounds of benzene and other toxic chemicals into the air.

What happened that day in Baton Rouge is one thread of a larger story about the often toxic, sometimes hidden releases emanating from oil refineries, chemical plants and other industrial facilities along the chemical corridor of Louisiana and Texas. Those unplanned emissions — known in regulatory parlance as “upsets” — are occurring more often than industry admits or government knows, according to more than 50 interviews with regulators, activists, plant representatives, workers and residents, and an analysis of tens of thousands of records by the Center for Public Integrity.

For many communities, these upsets have evolved into an invisible menace: They disrupt lives, yet offenders are rarely punished. In Texas, where activists have clamored for relief, state officials say enforcement efforts helped reduce incidents by 6 percent in the most recent year of reporting; Louisiana officials cite a 41 percent decrease since 2008.

Yet those numbers tell only part of the story. The mass of pollution emitted in Texas, the nation’s refinery hub, hit a five-year peak in 2011, the Center found — so even as the number of reported events dipped, the amount of pollution increased. And, experts say upset releases are consistently underreported. For communities straddling industry fence lines, worry and fear remain in the air.

This hidden pollution can produce harm. Over the last five years, records show, upset events have yielded almost four million pounds of toxic air pollutants in Texas alone — the 189 chemicals deemed so harmful to health Congress sought to bring emissions under control two decades ago. That’s two percent of all upset emissions.

“These are a major public health threat,” acknowledges Larry Soward, a former commissioner at the Texas Commission on Environmental Quality, who served on its board from 2003 to 2009.

“Upsets” occur when equipment breaks down or production units are shut off, restarted and repaired; or, as regulations state, when there’s an “unavoidable” accident.

Under law, plant managers must notify officials when accidental releases exceed certain hazardous air thresholds. In Baton Rouge, Exxon did this. Yet its numbers kept escalating.

At 5:10 a.m. that day, Exxon supervisors told the state the benzene leak would likely exceed the 10 pound reportable quantity. Within hours, they classified it “level 2,” barricading areas and monitoring the air. According to a call log, company officials found benzene levels “so high” bordering a rail yard, they advised the railroad “not to let anyone go through that area.” By 12:30 p.m., the company was testing 400 workers for exposure to the cancer-causing chemical.

The following day, Exxon reported that benzene emissions totaled 1,364 pounds during the leak’s first three hours. By June 20, it increased the number to 28,688 pounds. In its final report filed 60 days later, Exxon revealed the benzene total was actually 31,022 pounds — nearly four times what the refinery released in upset events in eight years, according to company reports compiled by the nonprofit Louisiana Bucket Brigade. State regulators later deemed the leak “preventable,” issuing an enforcement order contending that Exxon “failed to provide notification of a change in the nature and rate of the discharge.”

Exxon doesn’t dispute the leak was preventable. But the company, saying it accurately reported the release, is appealing the state’s order. While plant supervisors acknowledge the “large” leak, they say it didn’t threaten residents. Tests along the fence line showed “no community impact,” their records state; air sampling by regulators back up the company.

“It was a large number. We regret that number,” says Derek Reese, Exxon Baton Rouge’s environmental manager. “But we believe we did an appropriate response to mitigate the impact.”

That’s little consolation to residents, like Bowman. “Everything seems to stop at that magical gate,” she says, motioning to Exxon’s South Gate adjoining her neighborhood. “But if you live here, you know. Chemicals are let out on you.”

Upsets plague plant, community — time and again

Last spring’s valve leak has played out again and again at the sprawling, 2,400-acre ExxonMobil Baton Rouge complex, which encompasses an oil refinery and a chemical plant, and dwarfs the Standard Heights community. The leak marks the 1,068^th upset emissions event at the compound in the last eight years, according to a database of incident reports compiled by the Bucket Brigade. Of these events, 172 involved benzene, a carcinogen that can trigger headaches, dizziness and rapid heart rate.

Exxon’s chemical plant had 265 of all incidents. At the refinery, the data show 803 accidental releases over these years; at its height, the facility averaged two a week.

ExxonMobil Baton Rouge questions the Bucket Brigade’s analysis, calling it “likely another misrepresentation of data.” In an email, the company criticizes the environmental group’s methodology and findings, contending that incident numbers published by the group don’t match the reports catalogued by the state.

The Bucket Brigade stands by its analysis, and explains that Louisiana doesn’t have a standardized system for companies to report upset events. Instead, reports are filed on a rolling basis and then posted online.

The steady hazards extend far beyond Baton Rouge. In the Gulf states of Texas and Louisiana, the vast number of plastics, power and gas plants provide an on-the-ground case study of a national problem.

“Non-routine” upset emissions have become regular occurrences at oil refineries, chemical plants and manufacturing facilities.

Data collected by the Texas Commission on Environmental Quality, TCEQ, offer a rare window into this pollution peril; the state agency requires companies to report events online within 24 hours, as well as annual totals.

From 2007-11, just over 2,400 of the largest facilities across Texas spewed almost 180 million pounds of upset emissions, contamination on top of the 14.8 billion pounds of routine air emissions in that time. Nearly half the facilities experienced at least one event in that period, pumping out sulfur dioxide and other smog-inducing pollutants. The greatest concentration came in 2011: 58.1 million pounds.

The 20 biggest offenders — oil refineries and natural-gas plants in Kermit, Beaumont, Corpus Christi and beyond — account for more than half of all such emissions in Texas.

“It’s a lot of stuff,” says Neil Carman, a former state air pollution inspector who investigated upset events.

Carman now heads the air program for the Sierra Club’s Lone Star chapter, which has filed several citizen lawsuits targeting illegal emissions. Two facilities the Club sued rank among the state’s top emitters: ExxonMobil, whose petrochemical complex in Baytown has released 5.1 million pounds of upsets in the five years; and Shell Oil, whose Deer Park plant has emitted 2.5 million.

Studies have also explored this problem, documenting how the releases sometimes occur every day or two, and for largely avoidable reasons: Equipment breakdowns and poor maintenance, for instance. One researcher, Texas A&M University’s Melissa Jarrell, says they “are happening so frequently, it’s more likely companies know about the problems and know what to do to stop upsets.”

Industry portrays the discharges as an inevitable — and overwhelmingly harmless — byproduct of manufacturing. Regulators have encouraged this casual attitude, some say.

For decades, the U.S. Environmental Protection Agency and state regulatory agencies have effectively ignored the emissions. Officials don’t count upset events in facility permits and compliance records, notes Kelly Haragan of the environmental law clinic at the University of Texas-Austin, because they “aren’t supposed to happen.” In August 2004, Haragan penned a 215-page report showing how easily facilities can get away with releasing more pollution than allowed by the federal Clean Air Act — with little to no repercussions.

At times, she says, “It’s like having a whole other plant no one is even acknowledging.”

These incidents skirt normal pollution controls, venting through flares and leaks. Plants can have scores of events a year, giving off a constant cloud of invisible spoliation.

“A big dose of toxins are coming out of these facilities,” says Soward, the former TCEQ official, who now works for Air Alliance Houston, “and into fence line communities.”

The health effects are harder to measure; little research exists on the threat to residents. But recently, Dr. Mark D’Andrea, at the University of Texas Cancer Center, began tracking 4,000 residents exposed to the poster child of all upsets — the “40-day Release” at the BP refinery, in Texas City, which belched 514,795 pounds of benzene and 20 other pollutants throughout the spring of 2010. Earlier this year, D’Andrea unveiled preliminary data showing the residents have “significantly higher” white-blood cell and platelet counts than their Houston counterparts. The data suggests BP’s release may have increased their risk of developing such cancers as leukemia, the doctor says.

In a statement, BP says it does “not believe any negative health impacts resulted from” its 40-day release. “To our knowledge, the University Cancer Centers’ pilot study does not support a claim for any plaintiff alleging injury from that flaring and has no relevance to those claims,” the company wrote, referring to pending litigation filed by 47,830 residents and workers against BP alleging health ailments caused by the release. D’Andrea has not been hired as an expert witness for either side in the case, but has testified in pre-trial discovery.

‘An Invisible Poison’

In Baytown, Texas, about 250 miles from Baton Rouge, ExxonMobil operates the nation’s largest petrochemical complex, replete with an oil refinery and two chemical plants. The mass of stacks, tanks and pipes spans 3,400 acres on Houston’s ship channel, looming over blue-collar neighborhoods nestled in its shadow. In Harris County, a manufacturer’s Mecca, Exxon’s refinery tops all 155 upset emitters, spitting out 3.8 million pounds’ worth from 2007 to 2011. Its olefins plant ranks third in the county, with 1.1 million.

Here, residents describe fiery flares that have rattled windows, belched black smoke and cast a sooty substance on the ground. At times, they’ve unleashed a thunderous boom, “like an Air Force fighter jet,” says Shae Cotter, who lived across a highway from the complex. He remembers the sound jolting him from sleep at 3 a.m. Occasionally, he videotaped flares aglow like celestial globes, flames ballooning toward his home.

Residents say smells drive them inside. Stuart Halpryn, whose house sits a quarter mile from Exxon, says he tried to adapt to the odors, along with the runny noses and allergy-like symptoms. That changed in February 2009, he says, when his family became sick after a valve leak at the refinery. His four children suffered from such severe indigestion, he says, they missed school for a week. Later, he learned from reading Exxon’s report the leak had unleashed 17,432 pounds of six different toxic chemicals.

“Nobody really understands what’s being dumped on them,” says Halpryn, who moved his family to Kentucky in June. “It’s an invisible kind of poison that’s being rained down.”

The Exxon complex ranks among the state’s biggest emitters of upset emissions involving carcinogens and noxious gases. Top chemicals include hydrochloric acid, 1,3-butadiene and benzene, toxins that can trigger skin irritations, respiratory problems, neurological disorders and gastro-intestinal diseases.

Baytown residents Cotter and Halpryn, worried over Exxon’s emissions, are witnesses in a citizen lawsuit against the company in the U.S. District Court in Houston.

The Sierra Club, along with Environment Texas, filed suit in December 2010, charging that non-routine incidents at the Baytown complex since 2005 have heaved more than eight million pounds of “unauthorized emissions.” The complaint alleges “longstanding systemic problems,” and company records revealed in court show some facility units have encountered dozens of upset events: The refinery’s Fluid Catalytic Cracker Unit 3 raked up 34 incidents from 2005 to 2011; at the olefins plant, the Cold Ends Unit has had 32.

In a statement, ExxonMobil Baytown says it has worked with regulators to “greatly” reduce emissions. “We are proud of the overall reductions we have made,” the company wrote. Since 2000, Exxon notes, it has decreased total emissions at the Baytown complex by more than 50 percent. The company declined to provide similar statistics for the facility’s upset emissions. “ExxonMobil is committed to continuously improving the environmental performance of our Baytown Complex,” the company said.

In court records, Exxon doesn’t deny the 9,374 violations alleged by plaintiffs for “unlawful upset emissions”; they’re based on its reports cataloged with the state.

In August, the company filed a motion to dismiss the suit, contending, among other issues, that environmental groups aim to “second-guess” enforcement practices by the TCEQ. On April 3, a federal magistrate denied most of Exxon’s motion, paving the way for a possible trial.

For residents, the court proceedings might not come soon enough. Since December, the Baytown facility has set off a wave of upset emissions. One, triggered by a tripped compressor in the refinery’s Booster Station Four, pumped out 114,000 pounds of sulfur dioxide in 18 hours. It was the 20^th upset recorded there by company reports.

“Exxon is emitting all of these day after day,” says Marilyn Kingman, a long-time resident. “Anybody who lives in the Baytown area is suffering.”

Infrequent monitoring, incomplete data

The threat to fence line communities may be even greater than industry self-reports — and official data — suggest. One reason is that companies rely on infrequent air monitoring to estimate chemical emissions, including upsets. When monitors do measure toxic air pollution, they can miss the short spikes characterizing upset events. “Part of the problem with upsets,” says Jarrell, of Texas A&M University, “is you’re not getting a lot of true data.”

Companies can misstate the magnitude of events through faulty calculations, environmental advocates argue. Formulas used to estimate what’s spewed from tanks and flares are so antiquated — 19 and 20 years old, respectively — they “do an extremely poor job of predicting emissions,” says Eric Schaeffer, director of the Environmental Integrity Project. Attorneys from his nonprofit are suing the EPA to force it to update these “emissions factors.” Recent studies have shown discrepancies between what’s reported and what’s emitted.

Take the 40-day release at BP’s Texas City refinery. Plant supervisors assumed one flare had destroyed nearly 98 percent of the emissions, a regulatory requirement. Three years earlier, however, regulators concluded that, in some cases, actual emissions were six times greater than what the company reported. BP maintained it has “multiple bases for concluding that the flared hydrogen stream was well combusted.”

Others aren’t so sure.

“It’s a typical example of what goes on in these situations,” says Jim Tarr, a former Texas air regulator who serves as a consulting expert in pending lawsuits against BP over its 40-day release. “Not all companies do it this way,” he says, referring to the flaring forecast, “but a lot do.”

If the calculations seem questionable, critics say, so do all those upsets that don’t count. Company reports don’t account for unpermitted releases falling beneath the thresholds for reporting requirements — up to 5,000 pounds for some pollutants. Plant supervisors must keep records detailing the events and include their emissions in annual totals, but not in incident reports. Considered “below reportable quantity,” they essentially never happened.

“That’s the bigger story on upsets,” asserts Jay DeLouche, a Lake Charles lawyer who has sued facilities over the emissions. Some managers “just determine [an upset] is below reportable quantity … and say, ‘Nothing happened, it’s a non-event.’ ”

“Non-events” can translate into big numbers. Company records revealed in court in the ExxonMobil Baytown case show thousands more “non-reportable” emissions events than the “reportable” ones filed online with TCEQ. Filling 235 pages’ worth of documentation, the 2,158 non-events outnumber the 333 reportable events by more than six to one. In Baton Rouge, Exxon’s refinery has boasted a similarly high ratio of non-events; according to the latest data compiled by the Louisiana Bucket Brigade, the company has designated 70 percent of refinery incidents “below reportable quantity” in 2011, up from roughly 10 percent in 2005.

“We believe the refineries under-report,” says the Bucket Brigade’s Anne Rolfes.

Exxon says it “is very diligent in its reporting of incidents, no matter how small.” Plant supervisors must notify authorities of events within an hour of discovery, even if the amount is unknown, the company notes; often, they must report back to regulators that “the quantity is less than initially thought.”

Over the last five years, the company says it has reduced incidents exceeding the reportable quantity at the Baton Rouge refinery by 86 percent, and at the chemical plant by 47 percent. “We take every environmental incident seriously,” Exxon wrote. “We have a passion to reduce incidents and releases.”

Some residents and workers wonder whether ExxonMobil disclosed the massive amount of benzene released last June because regulators had swooped in to investigate. “If they could have hid it, they would have hid it,” contends Bob Landry, of the United Steel Workers Local 13-12.

The Louisiana Department of Environmental Quality is exploring that question.

In their 206-page report in 2012, LDEQ inspectors determined that Exxon supervisors failed to notify the agency once they knew a “substantial amount” of benzene was emitted. An Exxon Baton Rouge environmental manager informed inspectors the company had become aware of the leak’s extent at 12:30 p.m. that first day — just seven hours after notifying the state — when its engineers calculated the vapor loss. Exxon disclosed the calculations six days later.

The agency “believes Exxon knew more about the leak than it shared with us,” says Cheryl Nolan, LDEQ’s enforcement chief. She declined to elaborate, citing the company’s appeal.

Exxon supervisors insist they intended to notify regulators of the growing leak. “As the data came in we shared those concentrations with” the LDEQ, says environmental manager Reese, noting that his calculations kept changing as workers collected the naphtha and tested the air. “We want to be open and honest.”

The Trouble in Shreveport

Upstate in Shreveport, residents have for years complained of the Calumet Specialty Products oil refinery’s upsets, which have shattered windows and shaken foundations. Regulators wouldn’t necessarily know about the drama from company reports. The refinery has filed just 83 incident reports with the LDEQ from 2005 to mid-2011, among the lowest numbers in the state, the Bucket Brigade’s data shows.

Tired of the pervasive “rotten-egg” stench, residents have kept event logs and taken samples with specially equipped buckets, exposing unsafe levels of hydrogen sulfide. The gas causes headaches, eye irritations and sore throats. “It’s a battle every day,” confides Velma White, of the Residents for Air Neutralization, “and I’m tired.”

In August 2011, after a push by RAN and the Bucket Brigade, EPA inspected the refinery, uncovering a series of plant failures. The agency also found a litany of reporting problems. Calumet managers notified the EPA of six incidents in five years, yet their internal files documented nearly 600 — 100 times as many — a 2011 EPA document shows. Inspectors audited 161 records, finding most lacked the basic required information. Some offered no details.

Calumet’s plant manager, Tom Germany, didn’t respond to emails and calls seeking comment, and neither did other facility representatives. According to the EPA’s inspection report, Germany told regulators that “he knows what good looks like and recognizes that Calumet is not there yet.”

In the ensuing 18 months, Calumet managers have filed 19 reports of “unauthorized discharges” with the state, nearly one a month. “You’d have thought they’d be more cautious” since the EPA visit, says RAN’s White. “But they’re still piling it on us.”

Sometimes, the government stick is more tepid than expected. More than a year and a half after the EPA’s damning report in Shreveport, regulators have yet to issue violations. Advocate White says she met with EPA officials and Calumet supervisors as part of negotiations in a civil enforcement action — relaying community demands for anti-pollution projects including a medical mobile unit. While EPA officials told her to expect a “large” fine, she says past settlements with Calumet, including a $1 million fine levied by state regulators in 2010, have meant little in real terms.

“It didn’t solve the problem,” White says. “You send DEQ and EPA to Calumet, and they come out with roses.”

Some former regulators view such fines as “ineffective.” As TCEQ commissioner, Soward tried to change the way the agency determines financial penalties, to no avail. Today, he says, upset events aren’t treated “any differently than a common violation,” rendering fines so paltry companies have no incentive to stop.

Citizen suits, whistleblowers expose truths

The citizen suits in Texas may reveal deeper truths than regulators have found. In 2008, environmental groups sued Shell over recurring emissions at its Deer Park facility, which ranked among the state’s top 20 upset emitters at the time. By 2010, Shell had settled the case, agreeing to pay a $5.8 million penalty for its violations, a record in any Texas citizen suit, and to annually reduce the plant’s upsets in volume and number. Since then, Shell has cut upset emissions by 35 percent, court records show.

“That proves it right there,” says Karla Lande, who lives across a river from Shell Deer Park, and attributes her lost sense of smell partly to its upsets. When companies are forced to ease upsets, she adds, “They’re able to do it.”

In Baton Rouge, it took an ExxonMobil worker to shine a light.

The first day of the valve leak, Bucket Brigade advocate Anna Hrybyk remembers giving two EPA officials a “toxic tour” of Standard Heights and noticing a “rancid smell.” She got a headache; the officials, she recalls, “were like, ‘Quick, get in the car, roll up the windows.’ ” On June 15, Hrybyk asked regulators about the incident, and received an email assuring her the initial “estimated quantity was 10 lbs.”

The next day, a whistleblower worker tipped off Hrybyk to a different scenario. More than 48 hours into the incident, company records show, refinery employees were still collecting naphtha from the sewer, trying to suppress benzene vapors. Hrybyk dialed the state’s hotline, setting off a series of regulatory activities that would end in the LDEQ’s enforcement order. The July 2012 notice of violation says Exxon, among other things, was “emitting pollutants not authorized by a permit.” The action, pending the company’s legal challenge, could result in penalties.

Critics believe regulators never would have brought down the hammer without outside pressure. Nolan, the LDEQ enforcement chief, acknowledges that agency officials “didn’t act until we got a complaint,” but stresses that the enforcement order proves “we do act when a company has unauthorized releases.”

For residents, it all seems like more of the same. In the aftermath of the leak, Bowman displayed posters in her yard declaring, “ENOUGH IS ENOUGH,” helped form the Standard Heights Community Association, and traveled to the nation’s capital to lobby.

As the months have passed, feelings of helplessness have surfaced. She has noticed other pungent odors pervading her neighborhood. The Bucket Brigade’s latest data show 13 incidents at Exxon’s Baton Rouge complex since last June’s release, emitting more than 62,000 pounds of hydrochloric acid in one upset last November alone.

“I live up in fear here,” Bowman says. “I’m just sitting here, waiting to get poisoned.”

David Donald contributed to this report.

Clean Air Act law, reality collide

Texas,United States — 2013-05-21T08:28:30-04:00

Nothing in the law allows for the invisible danger from “upset” emissions to persist, but legislation and reality often collide.

On the contrary, the federal Clean Air Act was meant to reduce harmful emissions by requiring continuous pollution limits for industrial facilities. But since its passage in 1970, state and federal regulators have created loopholes involving accidental releases — loopholes that have for years been challenged, re-written and bogged down in bureaucracy.

Nearly from the start, regulators began waiving pollution standards when equipment unexpectedly malfunctioned and had to be shut down, started up and maintained.

By 2004, 29 states had devised what University of Texas-Austin researcher Kelly Haragan calls “a flat-out exemption” for such emissions. The Environmental Protection Agency offered similar immunity for those involving hazardous air pollutants.

“There is a big caveat here,” acknowledges Adam Kushner, who headed the EPA’s air enforcement unit until last year. “They didn’t necessarily count against your compliance picture.”

This murkiness began fading after environmental groups sued the EPA in 2003, alleging its exemption violated clean-air laws. By December 2008, a federal court agreed, vacating the language. The agency has lagged at fully closing its loophole; earlier this year, it unveiled a proposed rule that would require facilities in any state to follow pollution limits during periods of start-up, shut down and maintenance.

At the state level, regulators have begun replacing blanket exemptions with rules that, critics say, aren’t much firmer. In Louisiana and Texas, plant managers can claim unauthorized releases are “upsets” as a defense to enforcement.

“When regulators get one of those reports, they don’t even think about it any further,” says Adam Babich, of the environmental-law clinic at Tulane University, who has sued a half dozen plants. “It’s like, ‘Look, here’s another incident report. Let’s file it away.’ ”

Frequently, state regulators — the primary enforcers of the Clean Air Act — fail to investigate the thousands of reports of emissions events they receive, let alone issue enforcement orders. When regulators do act, punishment can amount to a slap on the wrist. Less than one percent of the 7,533 upset reports filed by Texas companies in 2004 had ended in penalties or corrective plans, a 2005 study by the nonprofit Public Citizen found.

Little has changed, enforcement data collected by the Texas Commission on Environmental Quality suggests: Throughout fiscal year 2011, agency officials investigated 36 percent of emissions events. About 3 percent of the reports led to enforcement notices yielding fines or corrective action.

Regulators bristle at the notion they’re ignoring this fence line pollution. To some extent, they say, they must expect that industrial facilities — many complicated amalgamations of countless pieces of equipment — will have unexpected releases. Simply put, says Tim Knight, an environmental-compliance administrator at the Louisiana Department of Environmental Quality, “Industry will have problems.”

Earlier this year, the LDEQ launched a voluntary workgroup with ExxonMobil Baton Rouge and 39 other petrochemical facilities to identify common causes of upsets. The TCEQ has paid particular attention to emissions events over the past decade, requiring that companies report online and revamping permitting policies.

Larry Soward, a former TCEQ commissioner, believes such scrutiny has had an effect; indeed, upset events in Texas declined from 4,766 reported incidents in fiscal year 2010 to 4,469 a year later.

EPA officials, too, portray emissions as a “high priority.” Officials at the agency’s regional office encompassing Texas and Louisiana launched a program in 2011 inviting the area’s top 17 emitters to the table.

Program directors asked companies to analyze their own records of upsets. Under current voluntary-compliance guidelines, companies wouldn’t begin to “benchmark” the emissions and thus document reductions until 2014. So far, no company has agreed to participate.

“We have found that using multiple approaches to try and solve this problem has worked best,” says Sam Coleman, EPA’s deputy regional administrator, noting that a similar initiative in 1999 “consistently” reduced upsets for several years. “The voluntary approach is simply one tool in the toolbox.”

Advocates remind federal regulators problems continue.

Eric Schaeffer, director of the Environmental Integrity Project and a former EPA enforcement chief, has sent letter after letter to Texas and EPA officials, flagging “egregious upset releases” and urging them to pursue the worst offenders. On April 23, he asked the EPA’s inspector general to examine how regulators responded to repeated upsets by the biggest Texas emitters. In Louisiana, Bucket Brigade advocates have turned toward a little-known EPA program that inspects facilities for the risk of “unanticipated” releases.

After a flurry of lobbying activity by the group highlighting a benzene leak at ExxonMobil Baton Rouge, EPA inspectors showed up at the company’s refinery for four days last July. Inspectors outlined a host of concerns, including pervasive “piping, valve, and vessel corrosion,” a November report shows. Exxon supervisors also failed to “correct deficiencies” in processing equipment; to assure that equipment was installed correctly; and to inspect underground piping.

Exxon says it has reviewed the EPA report and is sharing information that “we believe may clarify many of the areas of concern.” The company stresses the report doesn’t constitute a notice of violation.

EPA officials declined to elaborate. Coleman says, “It’s not appropriate for me to say whether there will be violations or what the outcome will be.”

'Chemicals of Concern' list still wrapped in OMB red tape

2013-05-15T08:27:55-04:00

For anyone anxious about toxic chemicals in the environment, Sunday marked a dubious milestone.

It has been three years since the “chemicals of concern” list landed at the White House Office of Management and Budget. The list, which the Environmental Protection Agency wants to put out for public comment, includes bisphenol A, a chemical used in polycarbonate plastic water bottles and other products; eight phthalates, which are used in flexible plastics; and certain flame-retardant compounds called polybrominated diphenyl ethers, or PBDEs.

The EPA wants to highlight these chemicals because “they may present an unreasonable risk to human health and/or the environment,” the agency says.

But any such listing must first be vetted by the OMB’s Office of Information and Regulatory Affairs, OIRA.

The EPA proposal arrived at OIRA on May 12, 2010. There it remains — a symbol, some say, of a broken regulatory system.

“It’s far past time for the OMB to conclude its review of the EPA’s proposal to list chemicals of concern,” Sen. Frank Lautenberg, D-N.J., said in a statement to the Center for Public Integrity. “Americans deserve access to information about the chemicals found in products throughout their homes that might pose a risk to their health.”

In a statement, OMB spokeswoman Ari Isaacman Astles wrote, “The Administration is committed to chemical safety and when it comes to complex safety rules, it is critical that we get them right.”

An EPA spokeswoman said only that the agency’s list, which has been challenged by companies such as ExxonMobil and Dow Chemical, “remains in interagency review.”

By executive order, OIRA is supposed to review proposed rules within 90 days of receiving them, with the possibility of a single, 30-day extension. That’s four months, maximum.

Why has the chemicals of concern list been at OIRA for three years? No one is saying.

Yet in a draft of an upcoming law review article, former EPA official Lisa Heinzerling, a law professor at Georgetown University, offers some clues.

Heinzerling lays some blame on recently departed OIRA director Cass Sunstein, now teaching at Harvard Law School. In his new book, “Simpler: The Future of Government,” Sunstein makes clear “how much power he wielded” at OIRA — with the authority to make sure that some rules " ‘never saw the light of day, ’ ” Heinzerling writes.

Sunstein did not respond to an invitation to comment. President Obama has nominated Howard Shelanski, director of the Federal Trade Commission’s Bureau of Economics and a former law clerk for U.S. Supreme Court Justice Antonin Scalia, to replace him at OIRA.

Problems at the office have become entrenched, Heinzerling argues.

“Many outside observers believe that there is in fact a deadline for OIRA review,” she writes. “Not only is there no deadline for OIRA review, but OIRA itself controls the agency’s ‘requests’ for extensions. In this way, it comes to pass that rules can remain at OIRA for years.”

EPA rules seem to draw extra scrutiny. “EPA receives more sustained attention from OIRA than any other federal agency,” Heinzerling writes. Fifteen of the 22 EPA rules under review have been at OIRA for more than a year.

What’s so threatening about the chemicals of concern list?

The American Chemistry Council, a trade group, did not respond to requests for comment.

In a statement to the Center last year, however, the group said, “We are concerned that EPA is creating a list of 'chemicals of concern' for potential regulatory action, without establishing consistent, transparent criteria by which these chemicals are selected. ... It is OMB’s job to closely review the proposed action and consider any negative economic impact; we appreciate that officials are taking the time they need to fully study the matter.

“Failure to fully review such agency proposals undermines public and private sector confidence in the regulatory process and can seriously harm American innovation and jobs.”

Richard Denison, a senior scientist at the Environmental Defense Fund, said publication of the list would not restrict commerce and is within the EPA’s authority.

“OIRA has deprived the public of the right to even comment by refusing to allow EPA to issue the proposed rule,” Denison said. “The debate is being squelched by an office that doesn’t have any real scientific expertise and certainly shouldn’t have the ability to override the authority that Congress gave EPA.”

EPA adds safeguards to spotlight conflicts on scientific panels

2013-05-03T17:14:40-04:00

The Environmental Protection Agency announced new safeguards Friday to prevent conflicts of interest or bias from tainting its science, including efforts to assess the dangers of toxic chemicals.

The reforms, targeting scientific review panels selected for EPA by outside contractors, follow a Center for Public Integrity-PBS NewsHour examination revealing ties between scientists and industry on a panel reviewing hexavalent chromium, a compound commonly found in drinking water that may cause cancer.

In that case, three panelists who urged the EPA to delay potentially stricter drinking water standards had been expert witnesses for industry in hexavalent chromium litigation. The scientists denied any conflict and said their input was based on research, but the case study revealed how the EPA is unaware of potential conflicts on its own panels.

Under its own process, the Center reported, the agency turns over the job of selecting panelists to private companies, which handle conflict-of-interest reviews in secret. All information the vendors collect, including financial disclosure forms, is “considered private and non-disclosable to EPA or outside entities except as required by law,” the EPA policy says.

The changes announced Friday add more layers of review — and provide more public disclosure — to the process.

Environmental watchdogs, who had questioned EPA's existing process, say the steps are overdue.

“It brings transparency to a process that wasn’t there before,” said Francesca Grifo, a senior policy fellow and expert on scientific integrity at the Union of Concerned Scientists.

One key change: After an EPA-hired contractor selects members of a scientific review panel, “the contractor will consult with EPA to review whether the contractor followed existing conflicts of interest guidance and requirements, and identify and provide input on any issues.”

That step adds an extra layer of review by EPA.

Also, the agency said, the names of chosen panelists will be publicly posted before any meetings take place.

The new steps do not change EPA’s existing standards for assessing conflicts, the agency said, but instead add sunshine to the process.

“This process will ensure that existing conflicts of interest guidance and requirements are applied correctly and where a potential conflict of interest is identified, allow EPA to determine whether the contractor’s plan to address the conflict is acceptable,” the agency said.

The EPA’s acting administrator, Bob Perciasepe, said Friday the new steps show the agency is “committed to scientific integrity.”

“Improving the contract-managed peer review process and increasing transparency will lead to stronger science at the agency,” Perciasepe said in a statement.

Richard Denison, a senior scientist at the Environmental Defense Fund, has been outspoken about industry influence at the EPA. Denison praised the EPA for bringing more openness to the process.

“The hexavalent chromium example was the major impetus for this revision,” he said.

Hexavalent chromium, best known as the toxic chemical compound from the hit film Erin Brockovich, is found in the drinking water of more than 70 million Americans, according to the Environmental Working Group.

New animal studies published in 2008 showed that mice and rats given high doses of the compound developed large numbers of tumors. The National Toxicology Program, part of the National Institutes of Health, cited the compound as a “clear carcinogen.”

The EPA planned to revise its assessment of the compound in 2011, even as a trade group, the American Chemistry Council, urged the agency to wait for industry funded studies. Several members of the peer review panel also urged the EPA to wait.

One was Steven Patierno, then a scientist at George Washington University, who was a consultant on ACC studies.

Another was Joshua Hamilton, a scientist at the Marine Biological Laboratory in Woods Hole, Mass., which is affiliated with Brown University. Pacific Gas & Electric Co., the company that polluted the water in Hinkley, Calif., with chromium, hired Hamilton as a consultant in 2009.

Hamilton said that just before the EPA peer-review panel met, PG&E asked him if he would go back to Hinkley to discuss the health effects of hexavalent chromium. PG&E said it paid Hamilton $110,000 for his work in Hinkley. Hamilton said he revealed the PG&E work to the private contractor hired by EPA, Eastern Research Group, and that the firm concluded it was not a conflict.

Officials with Eastern Research Group, based in Massachusetts, have not responded to interview requests.

Meanwhile, some members of Congress are pushing potential change to support industry.

The House science committee recently approved a bill to change the rules at the EPA for setting up scientific advisory panels. It would prevent the EPA from excluding people from panels with industry ties, as long as those ties are disclosed. It would also exclude panelists whose research is incorporated in the assessment. The bill is awaiting action by the full House.

From homemaker to hell-raiser in Love Canal

2013-04-16T15:58:31-04:00

FALLS CHURCH, Va. — The woman who helped free an entire community from a toxic dump, literally rewriting environmental laws in the process, was so shy at the start of the struggle she tried to hide behind a tree when neighbors called on her.

Lois Gibbs took to the stage that day 35 years ago, in the seemingly idyllic community of Love Canal, N.Y., and began to find her voice. Transforming herself from homemaker to hell-raiser, she helped convince then-President Jimmy Carter to come to town in 1980 and remove 900 families from a 21,000-ton toxic dump. Earlier that year, Gibbs and her neighbors held two Environmental Protection Agency officials captive in a ploy to get the president’s attention. It worked.

Long before Erin Brockovich became a movie, Gibbs helped secure an environmental victory of greater heft. Love Canal’s war against the toxins under its feet prompted the federal government to create the Superfund cleanup program and earned Gibbs the Goldman Environmental Prize.

Today she is still in the fight as executive director of the Center for Health, Environment & Justice, a nonprofit squired in a third-floor corner office in a nondescript building in Fairfax County, Va., a few miles from Washington, D.C. A tiny gray sign hangs outside the door, betraying no sense of the history inside.

Aged photos cover the walls and floors alongside stacks of environmental reports. One giant picture shows Gibbs aside President Carter, moments after he announced the relocation pact. Another photo shows a 3-year-old boy wearing a T-shirt announcing: “Love Canal Guinea Pig. Used by New York State and federal government.” Another picture — published by Today’s Suburban Woman magazine in 1979, a year into the struggle — shows Gibbs clutching her daughter in front of a boarded-up building.

These aren’t museum pieces, but reminders of a journey. Across the country, other communities, sickened by pollution but bereft of know-how, ring the Center for Health, Environment & Justice.

“I see myself in the people who call,” Gibbs, 61, says today. “These women call up and say ‘Nobody understands me.’ I can relate to them. I see myself in exactly the same place. If I don’t have that connection to the people, I would just walk away. ”

From dream town to toxic dump

Gibbs began finding that connection in 1978, as she went door to door in Love Canal after learning the community sat atop a landfill of toxins. “Who would build a school on top of a dump? Who would build a playground on top of a dump? And why didn’t anyone tell me?” she asked.

The discovery ignited a woman who, growing up in Grand Island, N.Y., 15 minutes upstate from Buffalo, busied herself sewing draperies and aspiring to be a housewife. In Love Canal, her vision took root. Her husband worked at the Goodyear plant and they had two children, Michael and Melissa. This neighborhood, just miles from Niagara Falls and her childhood home, was filled with the noisy chorus of kids, two churches and mom and pop shops. Gibbs walked her children to the 99^th Street Elementary School and to the playground next door each day.

Michael was born just before the family settled into a three-bedroom home on 101^st Street in 1972. Healthy at birth, Michael started getting sick not long after they moved in, and each ailment became more serious. His asthma led to pneumonia, which was followed by a urinary tract disorder, and then a seizure disorder. Finally, a doctor told Lois her son had an immune system problem. Melissa, conceived in Love Canal and born three years after Michael, developed a rare blood disease. Gibbs searched for clues, but found none; she didn’t even allow soda in the house, but her children could not shake their sicknesses.

Then, one day in 1978, the Niagara Falls Gazette published a story about toxic dump sites cluttering the region. Love Canal was one, and the news screamed from the page: 21,000 tons of toxic waste had been buried next to the school property, underneath the playground. The now-defunct Hooker Chemical Co. had sold the site to the school board 25 years earlier, for $1. “Oh, my God!” Gibbs thought, reading the Gazette. “Every single day I took my children to the playground to play.”

Pressing to move her son to another school, Gibbs won an audience with the school board superintendent. The school chief settled into an oversized leather chair behind a broad, shiny wood desk. He seated Gibbs in a school desk normally used by kids. Sunken in her seat, she slid two doctors’ notes across the desk saying her son’s sickness could be tied to the dump, she said.

The superintendent glanced at the notes, then slid them back. “‘We’re not going to do that because of one hysterical housewife with a sick kid,’ ” he said, as Gibbs recalled it. “ ‘Well, if your kid is so sick, why don’t you go home and take care of him? Why are you running around to City Hall and the school board?’ ”

Tears streamed down Gibbs’ face. “All of a sudden, I became the bad guy.”

At home, her Irish-Catholic temper began to burn. Raised on Love Road in Grand Island, one of six children of a stay-at-home mom and union dad, Gibbs was taught to vote at election time and fly the American flag. Now, as she raised two sick children in a town smothered in waste, the government had turned its back. “After I got sad, I got mad,” she says, recalling the conversation that helped propel her on a lifetime of activism. “Don’t ever tell me I’m a bad mother.”

When neighbors answered her knock, Gibbs opened up about her children’s illnesses. In living room after living room in Love Canal, neighbors shared that they also had sick children. “It wasn’t until I went door to door that they started saying, ‘My son has asthma too, or my daughter has epilepsy,’ ” Gibbs said. “Women talked to me about birth defects.”

Residents began paying closer attention to evidence before their eyes. One couple grew squash so huge it could win prizes at a community fair; now they worried toxins bulked it up. Kids dubbed a local creek “Beverly Hillbillies” — after the show about a family that struck riches in black gold — because they could stick a piece of wood in the water and it would come up slimy black. Rocks on the ground were so explosive they would pop like firecrackers if kids threw them against a wall.

One afternoon, a child stuffed rocks in his pocket and began running home when, suddenly, the rocks caught fire and burned him severely, Gibbs said. With each story, the community began to absorb the larger picture.

“She was like a hurricane and we just kept going,” said Luella Kenny, a fellow Love Canal resident-turned activist who serves on the board of the Center for Health, Environment & Justice. “She was a housewife, and there’s nothing wrong with being a housewife, and she did not have all of this shall we say Wall Street and Washington know how the politicians had and the Wall Street investors had.”

Instead, Kenny said, Gibbs possessed a “hidden talent she wasn’t even aware of. But when push came to shove and your children are being threatened, I think you find that energy that you are going to protect them, for heaven’s sake.”

Her son, Jon Allen Kenny, the only of her three children born at Love Canal, died at age 7 in 1978 from kidney failure.

Another day, Kenny was showing health officials her backyard when a bird flew into the creek, sipped some water, and plopped down dead, she said.

Among the toxins brewing in the underground cesspool: A mix of halogenated organics, pesticides, chlororbenzenes and dioxin, according to EPA records. The community linked the chemical waste to failing health, producing charts showing high rates of miscarriages, crib deaths, birth defects, kidney and urinary failings — and nervous breakdowns.

As the evidence mounted, Gibbs pressed for answers, thinking back to the preaching of her father, a war veteran and bricklayer for Bethlehem Steel. “‘The system will work, if you play by the rules.’ ”

In the spotlight

As she made the rounds, Gibbs kept searching for someone to emerge as the face behind the neighborhood’s mission. “Where’s the leader?” she wondered. “I’m a housewife of sick kids. My job is not to become a community leader.”

On Aug.2, 1978, the spotlight found her. That day, after gathering hundreds of signatures on a petition demanding that the state close the 99^th Street School, Gibbs and a neighbor piled into Gibbs’ green Cutlass Supreme convertible and drove five hours to the capital in Albany.

As they arrived, petitions in hand, light bulbs went off and commotion filled the air. “Are you Lois Gibbs? Are you Lois Gibbs?” reporters asked.

Serendipitously, New York health officials were holding a press conference, declaring a state of emergency in Love Canal and ordering the 99^th Street School closed. The state health commissioner was recommending relocation for pregnant women or parents with children under two living on the two streets nearest the landfill. New York directed Niagara County to clean the site. The state said it would help residents find temporary housing — but not pay for it — and families could return after the cleanup.

Back in Love Canal, the state’s announcement ignited fiery protests. Why move just the closest streets? What about parents with sick three-year-olds? “It was a kind of running joke,” Gibbs recalls. “If you get pregnant, you get out. It’s pretty pathetic.”

When she returned from Albany that night, neighbors were burning mortgages in a barrel. As Gibbs stepped from her Cutlass, homeowners called her to the stage. She tried to hide behind a tree. Spotting her brother-in-law, she sought advice. His counsel: Call a meeting. Gibbs gathered her strength, took to the stage and — making the first public speaking appearance of her life — announced that everyone would meet in the following days.

At that meeting, the community elected Lois Gibbs president of the Love Canal Homeowners Association. Suddenly, she felt the burden of 900 families on her back. It was one thing to fight for your own children, but another to know your decisions impacted thousands. “Here’s this huge burden,” she said.

Her solution: To make the homeowners association the most democratic organization on earth, with 50 street representatives, each responsible for fanning out to different corners of the community. Church leaders took on some roles, activists others. No decision was made unless the majority agreed. This democracy was her blanket — and helped shield her when, a year into the struggle in 1979, some neighbors, frustrated at the slow pace of reform, pressed for a new leader.

In a meeting room packed with 500 residents, one group shouted to replace Gibbs. Another said she should stay. The session threatened to veer into hysteria. Sitting at the head of the room, Gibbs thought: What would my mother do? She imagined two children fighting and pictured a mother taking away the toy at the heart of the struggle.

She took the microphone. “My first question is, how many people like blue?” she asked. Bewildered looks filled the hall. Slowly, a few hands reached upward.

“How many people like red?” she asked. Another cluster raised theirs.

“Look,” Gibbs said. “Everybody has a different opinion.”

Her tactic worked. The room settled into calm. Turning to her blanket once more, Gibbs cited the association bylaws, which laid out the process the homeowners needed to follow in order to elect a new leader. It never happened.

Instead, the residents pulled closer. “I just thank God that we had Lois at the time,” said Kenny, her former neighbor. “You just had never heard of people being able to take over and be able to win and to beat the government.”

A new face comes to town

As the fight evolved, a new face arrived in October 1978: The state tapped Stephen Lester, a Harvard-trained environmental scientist, to be a technical adviser to the residents of Love Canal.

Lester heard stories about the shy housewife who had never spoken publicly before. But now, sitting before him was someone entirely different. His first impression of Gibbs: “Hotheaded.”

“She was a fiery fighter,” Lester recalls. “She was very emotional, very opinionated, very active in the community. One of the very first things she told me was that the state of New York was lying to the public and they were hiding information and I couldn’t trust them. So I needed to listen to her and to the community.

“When I met the state Health Department, I was told Lois was very emotional and she lies to the public and makes things up. These two sides clearly don’t like each other. I decided I wouldn’t take sides.”

A month into his assignment, Lester said, “I quickly realized that Lois was telling more of the truth than the state people were.”

Evidence of harm continued to shake the community.

In 1980, the EPA issued a study showing that the chemicals in question could trigger genetic damage for future generations. In other words: That the community’s children could be sickened, and their grandchildren too. Yet the federal government still resisted pleas to move everyone out.

“That was the straw that broke the camel’s back,” Gibbs said. Her neighbors “just went crazy.” Housewives in pink hair rollers rocked cars in the streets one Saturday, she said. Neighbors poured gasoline on one lawn, spelling E-P-A, and lit it afire. “That’s when you knew you no longer had control,” Gibbs recalls. “It was scary.”

As the lawn smoldered, two EPA officials were holed up in a hotel nearby. Gibbs invited them to come to an abandoned home, where residents were meeting, to talk about their study.

When the officials stepped in, a communal brainstorm built up: Let’s hold them hostage. Standing shoulder-to-shoulder, the residents blockaded the EPA spokesman and scientist from leaving.

The FBI swooped into Love Canal and shut off outside access to the phones. The scene put the spotlight just where the community wanted it — upon President Carter, deep in a rough re-election campaign. The nation would see what the sitting president would do.

Six hours later, residents let the EPA men go, but they gave the president four days — until noon Wednesday — to act. Or else. Gibbs and her neighbors never knew what “or else” was. They prayed their spur-of-the moment deadline would work.

Convinced the FBI would lock them up for taking federal officials hostage, some residents went to bed fully clothed. “I didn’t want to go to jail in my jammies,” Gibbs said.

The feds never stormed their homes. But two days later, the White House agreed to temporarily relocate all Love Canal families.

“This is not an ordinary situation,” an EPA official announced May 21, 1980. “This case presents special circumstances warranting this extraordinary action. The studies completed to date are sufficiently suggestive of a threat to public health … ”

On Oct. 1, 1980, Carter came to town to cement a permanent relocation. As Carter spoke, Gibbs stood in the audience. There was a problem. Interest rates had skyrocketed, and homeowners worried they’d be underwater in their new homes. They pressed Gibbs to get the ear of a president flanked by Secret Service agents.

For a moment, Gibbs sat quietly. Then she made her move. Secret Service agents stopped her. “I’m not going to go away, and if you take me away I am going to scream,” she recounted. “How’s that going to look, Lois Gibbs taken out screaming because they wouldn’t let her talk to the president?”

The officials let Gibbs to the stage, where she turned to the president and whispered: “Can we talk about low interest loans?”

He turned to the activist, and said yes, they could talk about loans. He asked if she had heard of the Superfund program. That moment, captured in a giant black and white picture, is a keepsake Gibbs keeps on display today, leaning against the wall at the CHEJ.

In all, more than 900 families were moved out, 350 homes were demolished and the school torn down. The fight helped spur the Superfund program, in which government dollars clean up toxic sites across the U.S.

Carter lost his re-election bid to Ronald Reagan. But in his final State of the Union address in 1981, he cited Love Canal’s resonance. “The regulations establish comprehensive controls for hazardous waste and, together with vigorous enforcement, will help to ensure that Love Canal will not be repeated,” he said.

In 2004, Love Canal was officially removed from the Superfund list, though some residents still raise environmental concerns. "Love Canal taught us that we needed a mechanism to address abandoned hazardous waste sites, especially those that posed a threat to people's health," Jane M. Kenny, EPA's Regional Administrator, said at the time. "Decades later, Love Canal has become a symbol of our success under Superfund.”

A new mission

Gibbs formed the Center for Health, Environment & Justice in 1981, and in the years since has traveled to every state except Alaska. The group’s goal is to help communities face off against industry and government — and to flee pollution, just as people in Love Canal had. The organization has produced a 43-page guide — Relocation: Getting Organized and Getting Out (Go Go) — that offers how-to advice for communities new to the environmental battleground.

Victories don’t come easily in a landscape where industry flexes political muscle, governments move slowly and communities have little more than their wits.

In every stop, she asks: “What can you do to make them uncomfortable? I try to convince them that the more people you have the more power you have. At Love Canal we won because we turned out 550 people at every meeting.”

The Center’s science director is Stephen Lester, the same expert hired by New York to work in Love Canal. He is also Gibbs’ second husband. Married in 1984, they have two children along with Gibbs’ two children from her previous marriage.

“Lois is most comfortable in the communities,” said Lester. “She’s got eight balls in the air, and she’s going to a community on a weekend when she doesn’t have to. Her response has always been, ‘If I don’t go to these communities, then I can’t do this other stuff that keeps this organization going.’ ”

Recently, she traveled to Texas — to visit a row of refineries in Corpus Christi and discuss children’s school health concerns in Austin. Later she was in Annapolis fighting hydraulic fracturing.

In February 2012, Gibbs traveled to Wilmington, N.C., at the request of activists fighting to block construction of a cement plant proposed in the coastal city.

Gibbs visited for 24 hours, making three presentations. Her main message to organizers: To empower the citizens most likely to be harmed by the cement plant. Until then, the prime organizers were pushing the fight largely by themselves. But now, here was the mother of Superfund saying the larger power came from the people.

“She just changed the way we viewed our citizens,” said Sarah Gilliam, coordinator of the Stop Titan Action Network, who had invited Gibbs to Wilmington. “It was really just a giant light bulb going off for me.”

When she speaks to communities, Gibbs paces in front of the podium, speaking in common sense prose. “This is a big company. They’ve got lots of money and you don’t,” she told the residents in Wilmington.

Gilliam had studied Love Canal’s story while an environmental policy student in the Master’s program at UNC-Wilmington. Now, with the community’s struggle hitting dead-ends, she turned from the history books to the real thing.

“Before she came down here I had her up on this fake pedestal,” Gilliam said. “And when I met her she was just so real. … We’ve got this new mantra where we’re channeling Lois.”

Louisiana sinkhole shatters calm, prompts buyouts on the bayou

2013-04-16T16:30:19-04:00

BELLE ROSE, La. — Tim Brown eases his john boat from his back yard dock into his daily therapy: The Bayou Corne that courses through this patch of southern Louisiana like a lifeline. Brown powers past the Tupelo Gum, Cypress Moss and Swamp Maple trees that drape the bayou in a frame, and steers to the spot where he reels catfish and collects thoughts.

“If I had to actually leave this place and go back to a house on dry land, I’d probably be dead in two years,” says Brown, 65 and retiring next year. “I guess you can say it’s a totally different life out here.”

But now that life, for Brown and 350 other residents in a neighborhood with “Crawfish Crossing” signs and roads named Gumbo, Jambalaya and Crawfish Stew Street, has been shattered by discovery of a 14-acre sinkhole that fractured the community’s calm and may bury its dreams.

The sinkhole, triggered by a collapsed cavern operated by salt mining operator Texas Brine Company LLC, swallowed trees and fouled the air when it appeared August 3. Its discovery sent the Bayou Corne community here in Belle Rose into a state of emergency: Assumption Parish and Louisiana officials ordered a still-in-effect evacuation as state officials scrambled to unearth what happened.

“Initially the concern was, that first day, you have a sinkhole … and you don’t know what caused it. All you know is a 400-by-400 section of marshland just got converted to a muddy pit. Trees were sinking into it and not coming back. It was like quicksand,” said Patrick Courreges, a spokesman for the Louisiana Department of Natural Resources.

Natural gas filtered into the aquifer, and crude oil floated to the top of the sinkhole, about a third of a mile from the nearest homes anchored on each side of Highway 70. Louisiana officials feared explosion hazards and “potentially toxic constituents of crude oil and other hydrocarbons,” though the state said continuous monitoring has detected “no hazardous concentrations.” Yet earlier this month, sampling by Texas Brine found two homes with “concentrations of natural gas below the structure foundations that were above normal background levels,” Assumption Parish officials reported.

“That is just too close to the community to take any chances with what comes next,” Courreges said.

Eight months later, what comes next roils a community so close-knit it hosts its own Mardi Gras parade: The prospect that the entire Bayou Corne neighborhood, all 150 homeowners, will be relocated and not come back; that this haven for retirees and working class Louisianans will be, symbolically, swallowed by the sinkhole.

What’s happening in Belle Rose has played out in dozens of communities threatened by environmental hazards so dire residents feel compelled to demand that industry or government move them out. But as Bayou Corne’s experience shows, winning buyouts is never easy, and leaving is often painful. The community’s travails reveal the human cost of pollution.

“It’s been an ongoing, really to me, like a science fiction novel. You have this big hole that caves in and then it keeps growing and growing and growing,” said Marylee Orr, executive director of the Louisiana Environmental Action Network, an advocacy organization based in Baton Rouge. “Mysterious bubbles. It’s like watching the crawfish pot, bubbling the crawfish pot.”

Bayou Corne “is really a little piece of heaven,” Orr said. “It’s a paradise to them. They could go out, be on a boat, it’s absolutely beautiful. But now a lot of people think it’s ruined forever.”

Many residents have pushed for buyouts from Texas Brine. Last month, after pressure from Republican Gov. Bobby Jindal and parish political leaders, Texas Brine began contacting individual homeowners to begin the process of assessing their property values and, ultimately, making offers. How much the company will pay is unknown, leaving Jindal to tell residents, during a press conference in Bayou Corne last month, that Louisiana will “make them do it again” if the first offers are too small.

“The finger is pointed at us, and we understand that, and we are going to try to make a fair offer,” Sonny Cranch, a Texas Brine spokesman, said recently while giving a visiting journalist a tour of the sinkhole on company property.

Many of those pushing for buyouts are crestfallen by the prospect of packing up from a place where they fish, hunt and occasionally encounter alligators. When school is out, visiting grandkids pop up like spring flowers, giving the community the feel of camp on the water. Since the sinkhole’s arrival, many grandchildren have stopped returning.

Other long-timers refuse to leave homes they saved a lifetime for, state of emergency be damned.

“I don’t care if I’m the only one standing here. I’ll live here as long as I can,” vows James Bergeron, a 14-year resident of Crawfish Stew Street and retired deputy sheriff and offshore crane operator. “I’m 76 years old. This is all paid for. What am I going to do, go somewhere and buy something else?

“Come on!”

As he spoke, his eyes glistened.

Across the U.S., buyouts move slowly, painfully

While the environmental hazard in Bayou Corne is new — state officials say they know of no other instance in which a cavern’s sidewall collapsed to trigger a sinkhole — the wrenching prospect of relocation is not new for many communities from Florida to California.

Residents living on the fence-line face long odds in their quest to escape. Few communities flex political power, their voices faint against big-muscled industry or slow moving government.

“The vast majority of relocations in this country have come as a result of politics,” said Lois Gibbs, executive director of Center for Health, Environment and Justice, a nonprofit based in Falls Church, Va., that works with communities seeking relief from pollution.

Gibbs knows this firsthand. More than three decades ago, she was a housewife with sick children in the Love Canal neighborhood of Niagara Falls, N.Y., when she learned that her supposed dream town was built atop a 21,000-ton mound of toxic chemicals. Gibbs’ push lured President Jimmy Carter to come to town and, in 1980, free some 900 families from Love Canal’s toxic dump.

Today, Gibbs and her colleagues at CHEJ have prepared a 43-page guidebook to help communities navigate the tangle of industry and government.

The guidebook includes two dozen case studies of communities that did just that, winning relocation bankrolled by government or industry. But even successful relocation bids take years, sometimes decades.

In Pensacola, Fla., Gibbs said, residents sought for a decade to free themselves from the dioxins, arsenic and heavy metals from an abandoned former wood treating facility. By 1992, the Environmental Protection Agency said it excavated 225,000 cubic yards of contaminated material — creating a mound nearly 60 feet high — and “stored it under a secure cover on-site.” Residents dubbed the site “Mount Dioxin,” and complained of cancers and respiratory disease. The community launched a letter writing campaign demanding the EPA move them out.

Four years later, in 1996, the EPA said it would relocate a third of the residents. Enraged, the blue- collar community turned up the heat. Taking in small donations from across the country, CHEJ took out a full page ad in USA Today challenging President Clinton — then running for re-election, and needing the Florida vote. The ad juxtaposed a Clinton quote — saying that children should not live near hazardous waste sites — with a picture of Pensacola children aside the wood treating plant. Advocates delivered the ad to Hillary Clinton, then in Florida stumping for her husband.

The message, Gibbs said: “Clinton, put your words and your actions together.” Soon after, the community won a full relocation. Some activists refer to Pensacola as the “Black Love Canal.”

Other fence-line fights stretch out even longer.

In Norco, La., a four-street, all-black community named Diamond won a historic relocation from Shell Oil in 2002 after decades spent enduring illnesses and sometimes-deadly plant explosions. The grassroots victory was 13 years in the making, and came five years after a St. Charles Parish jury returned a verdict in favor of Shell in a citizen lawsuit alleging the company’s chemical plant and neighboring refinery contaminated the air and sickened residents. As in Pensacola, the Diamond residents were aided by aggressive activists who helped push intransigent industry and government.

Some communities harmed by pollution never do get out.

In Tallevast, a largely black southwest Florida town founded by turpentine workers, industry and government officials discovered in 2000 that a former beryllium plant had leached a 200-acre underground plume of cancer-causing TCE and other toxins in a town of 1.5 square miles. Lockheed Martin, the property owner at the time, discovered the leaching and set out to clean it up.

Yet for three years, no one — not the county, the state nor industry — told residents what was under their feet. Tallevast homeowners unearthed the news by chance in 2003, when community leader Laura Ward noticed workers on her lawn and started asking questions.

A decade after that discovery, the company has yet to agree to a full relocation.

Ward said residents continue to press for buyouts — with no success. “I think their decision to not do the buyout and do the move, was a bad decision,” Ward said. “We felt like that eight, 10 years ago, and we still feel that way.”

Meantime, Lockheed Martin’s cleanup will unfold over decades. The company vows to “continue to invest in the environmental, health and economic needs of the community.”

In Tallevast, as in Bayou Corne, residents seeking a buyout would depart with painfully mixed feelings — leaving homes they thought would pass down the generations.

Unexplained bubbling — then the sinkhole

Trouble in Belle Rose began months before the sinkhole arrived, with residents noticing a bubbling in the bayou and smelling gas in the air. In June and July of 2012, Assumption Parish, state and federal officials began examining the unexplained bubbling in Bayou Corne and Grand Bayou.

On August 3, an area of wooded swamp in Bayou Corne began to subside, prompting state Commissioner of Conservation James Welsh to issue a Declaration of Emergency. Assumption Parish issued its own state of emergency, and Gov. Jindal did too.

By 7:30 that night, the Assumption Parish Office of Homeland Security and Emergency Preparedness had called for a mandatory evacuation as state and federal scientists searched for answers, “uncertain of what the actual possible risks are,” the state said.

Louisiana authorities discovered that the sinkhole was caused by the collapse of a sidewall of a previously plugged cavern. “The collapse had created a pathway to the nearby groundwater aquifer and the surface for crude oil and natural gas which had been confined in a hydrocarbon-bearing layer,” wrote the state’s Courreges.

The collapse is unprecedented, he said — the “first reported failure of a brine cavern sidewall.” Caverns have collapsed before, but always from the top, he said.

The state directed Texas Brine to remove natural gas in the aquifer through vent wells, provide home methane detectors for any resident wanting them — and to pay residents under terms of the company’s permit and the Parish evacuation order.

Since then, Texas Brine has cut $875 weekly checks to all homeowners, whether the residents left or stayed back. The state’s evacuation order was mandatory — but not forced. Many residents have fled to temporary quarters, but return regularly to check on their properties as the company and state try to keep a lid on the sinkhole and monitor its environmental impact.

State officials have ordered underground 3D seismic technology to get a clearer picture of what is happening underground.

The biggest public safety concern, Courreges said, is “to get the gas out of the aquifer, and stop it from recharging the aquifer.”

“We’ve got to stop the source of it, because it’s still being fed. We’ve got to figure out the source, find some way to intercept it, stop it,” he said. “We’re looking into that 3D seismic to get some information, to get that underground picture.”

The state also intends to gain “a full understanding of the impact the collapse had on the stability of the ground surface,” Courreges said.

The sinkhole continues to stir concern. In late March, more than two dozen trees collapsed into it. And then on March 28, authorities temporarily halted work around the sinkhole after seismic monitoring detected “fluid and gas movement below the sinkhole.” More trees and a sinkhole access ramp sloughed in. On April 1 came another work stoppage amid signs of “fluid and gas movement below the sinkhole,” and water movement at its surface.

Explosion hazards are another worry. The state, working with the EPA, conducted a series of flights over the area scouring for potentially hazardous plumes. Monitoring to date has not “detected concentrations at or above surface that have reached the lower explosive limits,” Louisiana officials say. Concerned that crude oil and saltwater could spread to surface waters, the state ordered a containment berm to be built around the sinkhole.

So far, tests results by the Louisiana Department of Environmental Quality show “no harmful environmental releases,” the state said.

Yet for residents, the harm is right before their eyes: A community facing potential extinction.

‘Keep Out’ signs where residents frolicked

Today, homes once filled with bustle now feature “No Trespassing” or “Keep Out” signs. Along Highway 70, where giant trucks rumble past and dead armadillos occasionally dot the sideway, an insurance company’s ad has suddenly turned ironic: “Dreams can come true.”

The homes range from modest to modern, but all share a link to the water. The sinkhole’s mysterious arrival — and its murky long-term consequences — has taken a psychological toll.

“It’s just horrible,” said Wilma Subra, a Louisiana environmental chemist who has studied the area and visited recently. “This was a very close, very small community. You cannot imagine what they must be going through, day in and day out. Not knowing if you’re ever able to come back or not.”

Julie Albarado said she and her husband, drawn by a love of fishing, hunting and the water, moved to Bayou Corne in 2003. “It’s just terrible that we may have to leave,” said Albarado, who said she was diagnosed with cancer several years ago. “We don’t know where we are going.”

Nick and Brenda Romero say they dread leaving, but see no other option.

The Romeros bought their home in 1991 as a getaway retreat, and moved in fulltime in 1996. “We decided we enjoyed it so much we wanted to retire here,” said Nick. For several years, the couple drove back and forth to jobs in Baton Rouge, some 50 miles away. Nick is retired from the U.S. Postal Service, and Brenda a retired loan closing manager.

They started the community’s annual Mardi Gras parade, replete with live music, beads and hearty food. Their house connects with a vein of canal that leads into the bayou, and their yard features an orange tree that spouts so much fruit they share it with neighbors.

In summer, a cluster of their 10 grandchildren came to visit, with fishing on the bayou, and an occasional encounter with gators.

“Our grandkids loved coming here. It was one experience they never experienced anywhere else,” Nick Romero said. “We don’t have that anymore. Our grandkids can’t come out here anymore.”

Brenda, battling breast cancer, has developed a second career as an artist, often using wildlife as her muse. “To be on the water, peacefully on the water … We feel it would be impossible to find another place like this,” she said. “This is where we wanted to be for the rest of my life.”

Her husband worries about what Texas Brine will offer. “I didn’t and she didn’t cause this,” said Nick Romero. “We still have a mortgage on this. I’m retired with a mortgage.”

Karen St. Germain, the Louisiana state representative for the area, said she understands the residents’ anxiety. “You have taken a piece of their life that they can’t get back,” St. Germain, a Democrat, said on a steamy afternoon last month, just before Gov. Jindal swooped in on a helicopter visit. “I grew up on the water. It’s our sense of calmness.”

The sinkhole threatens to destroy that calm. St. Germain said she is keeping close tabs on how Texas Brine addresses the situation. The company, she said, didn’t initially move quickly to permanently relocate residents. “Not till they got pushed,” she said.

As he landed in Bayou Corne, Jindal shook hands with residents and heard their stories. “For the people that want to leave, there should be that option,” the governor told residents clustered around him. “But it shouldn’t be mandatory.”

Jindal then huddled inside with dozens of residents, emerging later to address the community and press, flanked by Assumption Parish and state officials. Jindal had drawn some criticism for not coming to Bayou Corne sooner — the press conference was his first visit since the sinkhole’s emergence — but he told residents he has been on their side from the start.

“We will hold Texas Brine accountable,” he said. “We’re going to make sure they’re responsible for cleaning up the mess they have caused.”

He cautioned that solutions will not come quickly. “This is a marathon.”

Jindal said Texas Brine has “missed many commitments and deadlines they made to the state. We said, ‘Enough is enough.’ ” The state, he said, will closely follow the company’s offer of buyouts, which could potentially begin coming later this month.

“The real proof will be in whether residents are actually accepting their offers,” Jindal said.

Before the sinkhole, “For Sale” signs were scarce in Bayou Corne. Over the last year, just three properties had been sold, a lawyer for Texas Brine told homeowners at a town hall meeting several hours after the governor’s visit.

Cranch, the Texas Brine spokesman, said the company has moved to address the environmental damage in the community while responding to citizen lawsuits already filed. “We have tried and made a good faith effort to respond as quickly as we possibly could” to the demands of the state, Cranch said. “We were faced with an awful lot of issues.”

Texas Brine’s website includes regular bulletins. “It’s been a big hardship on a lot of these people. Truly it has, and we recognize that,” Cranch said.

Four citizen lawsuits have been consolidated into one case in federal court. A fifth case moves ahead in state court, and more are likely. Environmental activist Erin Brockovich, working with Los Angeles attorneys, came to town in March to meet with homeowners who contacted her after the sinkhole surfaced.

Under a buyout process approved in court, Texas Brine is first contacting residents not represented by lawyers. Getting to that point has taken time, Cranch said, with the myriad environmental and legal issues triggered by the cavern collapse. Another question Texas Brine has grappled with, he said: “What to do with people who stay?”

Back on the bayou

Tim Brown is among them. A lab technician for a chemical plant, he and his wife Kathryn have lived on the bayou for 14 years, hosting crawfish boils and feeling securely at home.

“I’ve always wanted to be on the water,” said Brown, originally from French Lick, Indiana. “We’ve got too much invested in our home to try to move. … Once you live on the water, you don’t want to leave.”

“The fishing is still good,” said his wife. Indeed, Tim Brown said. He caught some catfish that day.

The Browns say they confront the catastrophe with a sense of perspective built from overcoming hardships. Kathryn’s mother and brother lost their homes in Hurricane Katrina. One of their daughters has had breast cancer. Tim Brown underwent heart surgery and a series of knee surgeries in recent years.

Yet they bring a dash of Cajun personality to the chaos. Each Christmas, the Browns decorate their lawn with three giant alligators. In March, the display remained in their front yard — with sinkhole related additions. “Texas Brine Sinkhole — Stink Hole,” says one sign. “We’re having a little fun with it,” Tim Brown said. “And the Texas Brine people thought it was funny.”

Soon, he is back on the water.

“Money’s not everything,” Brown said, recalling the day he encountered beavers, eagles and otters. Giant signs on the water warn of a natural gas pipeline, but Brown betrays little worry. Testing in his yard has not revealed any harm from the sinkhole, he said.

He points out his favorite fishing spot, just past the juncture where the Bayou Corne and Grand Bayou merge, then spins his boat back home. One of his three dachshunds stands beside him as the boat picks up speed.

“Hang on, hound dog,” Brown says to his dachshund, Fritz. As he pulls up to dock, he turns to a visitor and glances upon the water. “This is what we’re staying for.”

Decision Delayed on Dangerous Chemical in Drinking Water

2013-03-18T10:29:50-04:00

In part two, Miles O'Brien talks to scientists, members of the chemical industry and representatives from Pacific Gas and Electric about chromium-6 contamination in American drinking water.

Video: Science for Sale

2013-03-13T15:57:10-04:00

In part one of a two-part series, PBS NewsHour Science Correspondent Miles O'Brien travels to Hinkley, Calif. -- the town whose multi-million dollar settlement for groundwater contamination was featured in the movie "Erin Brockovich." Now, almost 30 years later, O'Brien explores the reasons why the groundwater in Hinkley still has dangerous levels of the chemical chromium and its link to cancer.

How industry scientists stalled action on carcinogen

PG&E Corporation — 2013-04-16T11:08:27-04:00

HINKLEY, Calif. – Ten days before Christmas 1965, Pacific Gas & Electric Co. station chief Richard Jacobs walked a half-block on a dusty road lined with scraggly creosote shrubs to check out a neighbor’s toilet.

Jacobs carried with him a secret, something he referred to as the “chromate problem.”

Starting in 1952, the power company began mixing a toxic form of chromium with water to prevent rust at a new pipeline pumping station in Hinkley, a remote desert community united by a single school and a general store. PG&E dumped the chromium-laced water into a pond.

Lately there had been reports of problems with the neighbors’ wells. PG&E had just drawn greenish water from one well and discovered high levels of chromium. Now, retired farmer John Speth was complaining of greenish deposits in his toilet bowl.

Jacobs took a look in the bowl but assured Speth that PG&E had nothing to do with it. “When I left Mr. Speth,” Jacobs later wrote in longhand, “he was satisfied but still concerned about his water.” Speth died of stomach cancer in 1974.

It wasn’t until Dec. 7, 1987 — 22 years after that visit to Speth’s house — that PG&E finally told the local water board that it had contaminated the underground water. The company claimed it had discovered the problem just one week earlier.

From here, the story is familiar to anyone who saw the hit film Erin Brockovich. The corporate polluter was taken to court. The victims got millions of dollars. Problem solved.

But in reality, the “chromate problem” has not gone away. Today, tens of millions of Americans drink chromium-tainted tap water. Yet the controversy over whether people like Speth are dying of cancer from it is still being hotly debated.

Some of the most powerful voices in the debate are companies with a stake in the outcome. They’ve hired scientists to convince regulators that the chemical compound is safe. The lawsuit that Brockovich championed was merely the beginning of an intriguing tale about corporate manipulation of science.

In 2008, the National Toxicology Program, part of the National Institutes of Health, published groundbreaking research detailing how mice and rats that drank heavy doses of a toxic form of chromium called chromium (VI) developed cancerous tumors. The findings prompted the Environmental Protection Agency to act.

EPA scientists evaluated hundreds of studies and concluded that chromium (VI) likely causes cancer in people who drink it. The agency in 2011 was on the verge of making its scientists’ findings official — a first step toward forming more stringent clean-water rules. But last year it bowed to pressure and announced it was going to wait for new studies being paid for by the chemical industry.

To lead those studies, the American Chemistry Council, the industry’s main trade group and lobbyist, hired ToxStrategies Inc., a Texas-based firm with scientists experienced in poking holes in research that links chromium to cancer. The company describes its business this way on its website: “We often interact and collaborate with regulatory, academic and industrial professionals to ensure that the most appropriate science is incorporated into each assessment.”

Mark Harris and Deborah Proctor, two principal scientists at ToxStrategies, have a history of attempting to delay regulatory action on chromium. Starting in 1996, they were both leaders in the chrome industry’s efforts to dissuade the Occupational Safety and Health Administration from setting stricter rules for airborne chromium in the workplace. OSHA pushed back action for years despite decades of research showing that workers exposed to chromium were dying at higher-than-expected rates of lung cancer. The agency finally adopted a stricter standard in 2006 under pressure from a court order.

Proctor also worked on revising a 1987 study that concluded that Chinese villagers who drank water polluted with chromium (VI) had higher than normal rates of stomach cancer. With funding from PG&E, Proctor’s employer, ChemRisk, paid the Chinese author to help publish a new analysis of the data. In contrast to the earlier article, the new one concluded that chromium wasn’t the likely culprit.The revised study — which did not reveal the involvement of PG&E or its scientists — helped persuade California health officials to delay new drinking water standards for chromium.

Finally, with industry funding, Proctor worked to try to influence the makeup and findings of a scientific panel deciding whether California needed stricter drinking water standards for chromium. The panel concluded — to the surprise of many — that there was no scientific basis for believing that drinking chromium causes cancer. One-third of Californians have chromium in their water.

Proctor and Harris declined to respond to requests for interviews.

The use of science to delay regulation is part of a familiar pattern in the field of environmental science. Industry pays for research to address “data gaps.” Even when animals or people are believed to be getting cancer from exposure, industry scientists argue that the chemical in question is dangerous only at extremely high doses. Finally, they argue that you can’t determine a safe dose of a chemical unless you understand precisely how it causes cancer. Until all the questions are answered, they say, it’s not fair to ask industry to bear the cost of stricter rules.

“So now what is happening is the industry is trying to get scientists to slow down the EPA,” said Gary Praglin, one of the lawyers who sued PG&E on behalf of Speth and hundreds of others who had lived near the Hinkley pumping station.

David Michaels, an epidemiologist who now heads OSHA, has written extensively about this brand of science.

“Their business model is straightforward,” Michaels wrote in his book, "Doubt Is Their Product." “They profit by helping corporations minimize public health and environmental protection and fight claims of injury and illness. In field after field, year after year, this same handful of individuals come up again and again.”

Overwhelming evidence of lung cancer

Suspicions that chromium might cause cancer emerged in the late 19th century. In the 1950s, studies of factory workers exposed to airborne chromium showed much higher rates of lung cancer than expected. Thomas Mancuso, a pioneer in occupational medicine, continued to follow the workers at a chromate plant in Painesville, Ohio, for decades. In his final account in 1997, he reported that 23 percent of them had died of lung cancer. Other studies elsewhere confirmed Mancuso’s findings.

Given the overwhelming evidence that chromium particles in the air were killing people, PG&E’s challenge in the Hinkley case was to persuade judges on an arbitration panel that chromium traces in water were different. The company hired academic scientists, such as Steven Patierno at George Washington University, who testified that saliva and stomach acid render toxic chromium harmless, at least at levels that any human would drink.

Still, a few troubling studies at the time suggested that humans and animals may have developed cancer from drinking chromium. To address those studies, PG&E hired ChemRisk, a scientific firm that helped companies with legal or regulatory issues. The chief executive officer of ChemRisk was Dennis Paustenbach, a San Francisco scientist who has become the undisputed star of product defense.

Paustenbach declined interview requests. In a 2009 profile written by two University of Virginia professors, Paustenbach explains that he’s been driven since his modest upbringing to be financially successful, putting in 65-hour work weeks.

His work as a scientist has included advocacy from the start. Each week as a young toxicologist at a chemical company in Connecticut, he flew to the nation’s capital to lobby regulatory agencies such as the EPA. His relationship with the agency evolved and he later sat on numerous EPA advisory panels. For the past four years, he’s served on a panel overseeing EPA research.

A rare inside look at what Paustenbach does can be found in the minutes of a 1996 meeting in Pittsburgh of the Chrome Coalition, then the industry’s trade group. At the time, OSHA was proposing a big reduction in the amount of chromium dust allowed in the workplace. Paustenbach outlined a plan to prevent that from happening.

“Dr. Paustenbach suggested that … the Coalition may wish to approach the regulators with a program designed to fill a ‘data gap’ … to forestall the rulemaking,” the minutes read.

There was a discussion of ChemRisk possibly providing “confidential” and “pro bono” assistance to researchers at Johns Hopkins University to finish analyzing data for an EPA study of a Baltimore chromate plant. The EPA study was designed to answer questions left from Mancuso’s earlier work. At the same time, Paustenbach proposed writing an “anti-Mancuso manuscript” and critiquing all relevant workplace studies in an “effort of convincing OSHA not to go forward with what they presently have.”

Also attending the meeting were Proctor, who worked for Paustenbach at ChemRisk, and Harris, a former ChemRisk employee who at the time worked for Chemical Land Holdings, a company involved in a costly chromium cleanup. Both Proctor and Harris now work for ToxStrategies.

Paustenbach said in a recent statement to CPI and PBS NewsHour, “There is no evidence supporting any unethical conduct by ChemRisk scientist in regards to past work for the Chrome Coalition. The focus of ChemRisk scientists was solely on expanding the body of knowledge on which OSHA and other scientists could evaluate Chromium 6.”

In the end, the EPA study confirmed Mancuso’s findings that workers exposed to chromium were at a substantially higher risk of dying from lung cancer. Still, OSHA would wait more than a decade to tighten workplace standards for chromium under pressure from federal appeals court decision.

For the PG&E lawsuit, Paustenbach decided to conduct original research. Environmental science often lacks good human studies. Few people would volunteer to drink something potentially toxic to see if it would make them sick. Yet, that is precisely what Paustenbach did.

He and other scientists at ChemRisk sat for hours in Jacuzzis filled with chromium-laced water. They also drank chromium-contaminated water by the jug and then ran tests on their blood and urine.

ChemRisk scientist Brent Finley appeared on ABC News in 1996 to drink some of the yellow water, prompting correspondent Cynthia McFadden to say, “There are those who would say you drinking a gallon of this chromium-laced water doesn’t prove anything except that you — in some people’s minds — may be foolish.”

Paustenbach explained in his business school profile that he’s motivated in his work by what he sees as greedy lawyers using bad science to take advantage of corporations.

"Without a doubt, a large percentage of environmental and occupational claims are simply bogus,” he said, “intended only to extract money from those who society believes can afford to ‘share the wealth.’ "

Secrets of the 'Blue-Ribbon Panel'

Before the film Erin Brockovich even came out, the state of California was already taking steps to strengthen drinking-water standards for chromium. In 1999, scientists at the California Office of Environmental Health Hazard Assessment concluded that it was safe to assume that drinking chromium may cause cancer. They reasoned that breathing chromium was just another way the metal got into the body and caused damage. Plus, a 1968 study showed that 11 out of 66 female mice developed tumors after drinking chromium-laced water.

OEHHA’s next task was to figure out how much chromium a person could drink each day without exceeding a one-in-a-million chance of getting cancer from it. The agency computed a number that was 40 times lower than the existing U.S. drinking-water limit.

One industry consultant warned that if this standard became law, it would cost $11 billion to clean up California’s water, plus another $1.7 billion every year to keep chromium out of the water.

Before a new drinking-water standard could take effect, the state asked the University of California to set up a “blue-ribbon panel” of scientists to review the science. In August 2001, the panel issued a report that said there was “no basis” for concluding that chromium-contaminated water could cause cancer.

The panel dismissed the rodent study because an unrelated virus had killed many of the mice. It barely addressed the mounds of research on lung cancer.

The state agency concluded that it had little choice but to retract its chromium “public health goal” and wait. The state had asked the National Toxicology Program to do multimillion-dollar rodent studies on chromium. But the results wouldn’t be published for another seven years.

Questions soon arose about whether the blue-ribbon panel was biased. When the group held its only public hearing in July 2001, a lawyer for Hinkley residents, Brian Depew, attended. Depew said an environmental activist approached him afterward and later sent him a binder of documents that touched off months of investigation by Depew’s law firm.

The lawyers soon documented that Paustenbach initially served on the panel even though PG&E had paid ChemRisk at least $1.5 million during the lawsuits. Paustenbach said he didn’t appear at the public hearing and his name is not on the report.

The lawyers also learned from invoices and testimony that Exponent, the company where Paustenbach served as vice president and its most senior scientist, was being paid by an industry group focusing attention on the blue-ribbon panel. The Alliance for Responsible Water Policy was bankrolled by General Electric Co. and Lockheed Martin Corp., two companies entangled in chromium cleanups.

A strategic action plan for the Alliance dated April 6, 2001, and later disclosed in court records, listed as its strategy to “participate in state panel’s review of chromium 6, influence selection of panelists [and] provide input and information to panel.”

Proctor acknowledged in a deposition that she drew up a wish list of panelists and gave it to a lobbyist, Eric Newman. One of her colleagues, Brent Finley, also asked how he could get on the panel. Newman, who declined to comment for this story, responded to Finley in a March 31, 2001, email: “We will be lobbying hard for balanced representation. … It is critical that we get you, Deborah Proctor and/or other folks on the non-alarmist side of things.”

According to Proctor’s testimony, one of the names on her list was Joshua Hamilton, a Dartmouth professor working as an expert witness for PG&E. In 2011, Hamilton would be named to an EPA peer review panel for chromium (VI) and urge the agency to wait for new industry-funded studies led by Proctor. Hamilton, in a statement, has denied that he had any conflicts of interest while he served on the EPA panel.

When Paustenbach was named to the panel, Finley sent an email to Newman saying, “So, it looks like we got ‘one of our own’ on the panel.”

When asked whether Exponent was being paid by an industry-funded group for work related to the blue-ribbon panel, Paustenbach told CPI through a public-relations firm, “I have heard that this is true, but I do not know specific details because I did not participate in any work for the Alliance.”

Proctor, Paustenbach and other Exponent scientists quickly penned a review article that could serve as a blueprint for the panel, and Paustenbach shared it with the group. The article was paid for by Merck, another company involved in a chromium cleanup. The panel chairman, Jerold Last, sent an email to the group on June 14, 2001, saying, “I copied the third chapter pretty much verbatim from a review Dennis and his colleagues have in press, so we will want to do some revisions to eliminate the verbatim aspect.”

Paustenbach denied that the blue-ribbon panel’s report was merely copied from Proctor’s article. He told a California Senate committee investigating the panel that only “4 percent — exactly 4 percent — of the report was, in part, borrowed from a published paper by my colleague,” Proctor. Last, who did not respond to requests for comment, told the committee that what “started out as cutting and pasting … ended up being material that one or all of us reviewed thoroughly before we put it into the report.”

The major conclusions reached in the ChemRisk article and the state report were the same.

Paustenbach said that he disclosed his involvement in the PG&E lawsuit to Last but that neither he nor Last considered the PG&E work to be a conflict of interest. Still, because of concerns raised by an advocacy group, Paustenbach said he stepped down from the panel before the panel held its public hearing.

When the blue-ribbon panel report came out, Paustenbach attached it to an email to a colleague at Exponent saying, “Buy a good bottle of wine, pull up a chair, and then read this. Then say to yourself, ‘Yep, I really finally did something good for society...’ The world is now a better place to live.”

When a lawyer read the email aloud during a deposition, another scientist who served on the panel called it “sad.”

“This [is] about winning. It’s not about truth,” John Froines, a toxicologist at the University of California, Los Angeles, testified. “The world isn’t a better place to live. The world is actually a poorer place to live because of this. It makes people cynical about trusting in the science, and I think that’s really too bad.”

Froines quit the panel before it finished its report, saying he was concerned about panelists with ties to industry. But also, Froines simply didn’t believe the panel’s findings.

Chinese study revisited

Meanwhile, the California Environmental Protection Agency also had suspicions about the blue-ribbon panel.

Two studies highlighted in the panel report came from China’s Liaoning province, northeast of Beijing, where a smelter began contaminating the water with chromium (VI) in 1965. A doctor in the area cared for the sick for years and eventually counted the deaths from cancer. He published an article in 1987 in a Chinese journal, concluding that villagers who drank the tainted water suffered higher rates of stomach cancer.

A decade later, the same doctor published a new article in an American journal concluding that chromium most likely wasn’t the culprit.

The head of California EPA’s Office of Environmental Health Hazard Assessment, George Alexeeff, asked a new epidemiologist on staff, Jay Beaumont, to look into the studies. In recent interviews, Beaumont said he quickly found things that didn’t seem to add up.

For example, the revised article said stomach-cancer rates for the province weren’t available. But Beaumont had a colleague quickly track down the data at the University of California, Berkeley, library. Beaumont said the numbers came from the same source the Chinese doctor used for other comparisons.

Within a few days, Beaumont ran his own analysis and found that villagers who drank chromium-laced water were 85 percent more likely to have stomach cancers than were those who lived in the surrounding province.

Beaumont tried to reach the Chinese author, Dr. Zhang JianDong, but he had died in 1999. However, there was still a website promoting a book Zhang had written. Something caught Beaumont’s attention. The site revealed that Zhang was a consultant to McLaren/Hart Environmental Engineering Corp., the company that at the time owned ChemRisk.

Putting the pieces together, Beaumont wrote an email to his boss, saying that “the money to pay Dr. Zhang likely came from the industrial clients of McLaren/Hart who have a strong financial interest in the health effects evidence for Cr6. I don't know what Dr. Zhang was paid to do by McLaren/Hart, but republishing his study with different conclusions seems a possibility.”

PG&E now acknowledges it paid for the revised analysis, though records show only about $2,000 went to Zhang.

Two ChemRisk documents describe Zhang’s role as “research assistance” and “document review and consultation.” Meanwhile, a ChemRisk scientist named project coordinator was budgeted to be paid $13,500 to “interpret data” and “write reports” that were then to be edited by Paustenbach and Finley. The ChemRisk proposal linked the research to the PG&E lawsuit by saying that the new article “can be used as the foundation of a number of trial exhibits that summarize the absence of the association between cancer and groundwater exposure to Cr6.”

Proctor, the same scientist who recently conducted studies for the American Chemistry Council, billed for her time on the Chinese article as well, according to a deposition.

“What was important to PG&E at the time is that the science was accurate,” said Sheryl Bilbrey, now in charge of the cleanup in Hinkley for PG&E. “So we did fund that work, and I think it's unfortunate that when it was republished they didn’t acknowledge PG&E's involvement, because it really took away from the focus of the science and had more to do with the disclosure issue.

“PG&E's intention on any project is to make sure that we have the best science,” Bilbrey said. “These projects are incredibly important to us, and we want to get it right. So we looked to Dr. Paustenbach and his experts to make sure that the science was accurate.”

Paustenbach, through a public-relations firm, released a 9-page statement acknowledging that ChemRisk approached Zhang and another author to point out that “there were shortcomings in how these physicians interpreted their data.” The statement said that Zhang was surprised by the new ChemRisk analysis but agreed with it. The firm also released hundreds of pages of documents that included one signed by Zhang saying he agreed to the “editing and expanding of the original manuscript.”

Paustenbach’s recent statement says, “The record makes clear not only that Zhang prepared the report, but also that Zhang, fearful of political pressure from his government, indicated that acknowledgment of American researchers was not appropriate since it was his study.” Paustenbach testified in 2002, “We asked Dr. Zhang, in fact, to be coauthors on that paper for sake of transparency … Dr. Zhang, on his own decision, chose to keep that as a singular authorship.”

None of the documents Paustenbach provided CPI indicate that Zhang explicitly objected to other names being listed as authors.

Despite the question of authorship, scientists at California’s OEHHA said they took the new study at face value. Still, they rejected its findings.

“The ’97 study basically concluded that there was no association between chromium (VI) in the drinking water and cancer cases among the Chinese villagers, in large part because the villages that were more distant from the source of the drinking water contamination had higher cancer rates,” said Allan Hirsch, OEHHA’s deputy director, in a recent interview. “People closest to the facility may not have been drinking the water, because it was yellow and unpalatable.”

In a recent statement, Paustenbach characterized the California EPA's analysis as "flawed and incorrect."

The Journal of Occupational and Environmental Medicine retracted the article. Journal editor Paul Brandt-Rauf said in a recent interview with CPI that the article violated its policies by not revealing all of the significant authors or the funding.

Paustenbach said through a spokesman that the rules did not require disclosure because the amount paid Zhang was so small. However, Brandt-Rauf rejected that explanation.

The Environmental Working Group, an advocacy organization, did its own investigation of the Zhang study and was troubled by what it found. "I mean, this really is a story about science for sale," said Heather White, executive director of the group.“It’s shocking.”

EPA faces industry pressure

In 2008, the National Toxicology Program published the results of its rodent studies. High numbers of the mice and rats developed tumors in their oral cavities and small intestines. The NTP concluded that there was “clear evidence” that drinking chromium (VI) causes cancer. At about the same time, the California EPA took the nearly unprecedented step of publishing its own findings on the Chinese study.

Both the federal and California EPAs began preparing scientific assessments based on the new research. Both would come to the same conclusion. Hexavalent chromium is safe only in miniscule doses.

Yet the American Chemistry Council planned to have a number of new studies ready just before the EPA was scheduled to issue its final assessment. The ACC urged the EPA to wait until the agency could digest the new data. The scientists at ToxStrategies proposed studies to address “data gaps” in the NTP study.

It was a move harkening back to the Chrome Coalition meeting in 1996 that Proctor and Harris attended. When she worked for Paustenbach, Proctor published a series of articles about workers in the same plant that Mancuso studied for decades, but her conclusion was quite different. Her studies concluded that OSHA did not need to tighten its standard to protect workers.

In the end, OSHA adopted a stricter standard, but critics argue that it’s still too high. By OSHA’s own calculations, 10 to 45 workers out of 1,000 are expected to get lung cancer in their lifetimes from the current exposure limit.

The California EPA, which had already delayed a chromium assessment for a decade, refused to wait for ToxStrategies’ studies, saying, “It would be very difficult for OEHHA to justify further delay.”

California’s assessment of chromium went through not one, but two peer-review panels. Some of the independent scientists questioned whether the safe-dose level was actually too high, so OEHHA lowered it. The agency issued its public-health goal on chromium (VI) in July 2011.

At first, the head of the EPA’s chemical-assessment program, Vincent Cogliano, also refused to wait for the ToxStrategies studies. But five of nine peer reviewers selected by a private contractor urged delay. One of the reviewers was Steven Patierno, a former PG&E expert witness who served as a consultant on the ToxStrategies’ studies.

In January, the NTP published new research from its rodent studies that challenges Patierno’s contention that saliva and stomach acids render chromium (VI) completely harmless, undermining the theory that chromium is dangerous only in high doses.

Celeste Monforton, a professorial lecturer at George Washington University’s School of Public Health who has written about industry scientists’ influence on chromium policy, said that, based on her own experience working with agencies, regulators are aware that research done by industry is often an attempt to delay.

“Some people at EPA understand that and know that,” she said. “It takes the political will to stand up to that.”

In the Hinkley lawsuit, judges more 16 years ago considered the scientific arguments and ruled against PG&E. In essence, they concluded that the contaminated water in Speth’s toilet was capable of causing cancer.

Froines, the UCLA scientist who resigned from the blue-ribbon panel, said it’s time for public health agencies to do the same.

“At this point, we shouldn’t be debating the carcinogenicity. … We should be at a place where we’re looking for alternatives to the use of chromium,” said Froines, who has evaluated more than 400 chemicals for a California advisory panel he chairs. “You’re dealing with people’s lives.”

Miles O'Brien, science correspondent for the PBS NewsHour, contributed to this story

EPA unaware of industry ties on cancer review panel

2013-04-16T11:08:27-04:00

In September 2010, scientists at the Environmental Protection Agency came to a startling conclusion: Even a small amount of a chemical compound commonly found in tap water may cause cancer.

The compound, hexavalent chromium, gained infamy in the Oscar-winning film Erin Brockovich, based on the David-vs.-Goliath legal duel between desert dwellers in Hinkley, Calif., and Pacific Gas & Electric Co. The film ends in Hollywood fashion, with the corporate polluter paying $333 million to people suffering from illnesses.

But in real life, the drama continues. More than 70 million Americans drink traces of chromium every day, according to the Environmental Working Group, a nonprofit research organization.

And now, more than a decade after the film, EPA scientists cite “clear evidence” that the chemical compound, also known as chromium (VI), can cause cancer. The federal agency was poised to announce its findings in 2011, a step almost certain to trigger stricter drinking-water standards to prevent new cancers and deaths.

The chemical industry’s trade association and chief lobbyist, the American Chemistry Council, urged the EPA to wait for more research, a common practice to delay action on toxic chemicals. However, Vincent Cogliano, the soft-spoken head of EPA’s chemical-assessment program, rebuffed the powerful group, writing in an April 2011 letter that “strong” new research was already available.

Ten months later, the EPA reversed itself, quietly posting a notice on the Internet that it was pushing back the release of its findings for at least four more years. Environmentalists were stunned at the reason: The agency would wait for the results of new studies costing $4 million and paid for by the American Chemistry Council.

The EPA decided to wait at the urging of a panel of scientists chosen to give an unbiased review of the chromium findings. But the EPA doesn’t vet these scientists directly, instead handing the task over to outside contractors. An investigation by the Center for Public Integrity found that several of the panelists had worked on behalf of PG&E to defend the company in the Brockovich lawsuits.

President Obama pledged during his 2008 campaign to halt meddling and interference in government science. The president put restoring integrity to science on his short list of priorities in his first inaugural address, right after fixing the economy and before health care reform. “We'll restore science to its rightful place,” he said.

The story of chromium (VI), full of twists and turns, offers a case study in how the Obama administration has failed to shield science at the EPA from industry influence.

Companies with a stake in chromium have borrowed from the Big Tobacco playbook, using science to create doubt. Ever since the brassy Brockovich knocked on doors in Hinkley to organize a class-action lawsuit, scientists paid by industry have tried to convince the courts and regulators that chromium (VI) poses no health risk.

Some of those scientists ended up on the panel chosen to review the EPA’s chromium findings, the Center for Public Integrity found:

Three of the five panelists who urged delay had worked on industry's behalf in the Hinkley court cases.

One of those scientists was retained by PG&E in the company’s ongoing chromium cleanup in Hinkley at the same time he was serving on the EPA panel.

Another scientist who urged the EPA to wait for the American Chemistry Council studies served as a consultant on those studies.

“You don’t have to be a rocket scientist to realize that this is corrupt and unacceptable,” contends Rena Steinzor, a law professor at the University of Maryland and president of the Center for Progressive Reform, a think tank that recently published a report on the chemical industry’s influence.

Those members served on the EPA’s toxic-chemical-assessment program, the Integrated Risk Information System. IRIS, as it is known, is the pure science upon which clean air and water rules are based. But IRIS has become a major bottleneck, delaying new federal and state air and water standards amid industry influence and other factors. Critics say the EPA has only itself to blame.

Since October, EPA Administrator Lisa Jackson has declined interview requests to discuss IRIS or loopholes that open the door for potential conflicts of interest. Yet Jackson is pushing reform before she leaves office this week that would address some of the conflicts unearthed in the Center’s review, and cited by environmental activists.

And recently the EPA decided to move up its timetable to complete its chromium assessment to later this year.

Case study of industry’s muscle

The issue of scientists with industry ties serving on special EPA peer review panels goes beyond chromium. One out of every six scientists appointed to such panels since Obama took office had been a primary author of research articles funded by the American Chemistry Council over the past dozen years.

In all, 11 of the 68 members appointed to EPA panels assessing chemical health hazards were significant authors on studies funded by the ACC, a review of the council’s research database reveals. That number does not capture all scientists backed by industry, just those with work funded by the ACC. The authors of the hexavalent chromium studies, for example, are not included.

One scientist who has served on several EPA panels and co-written more than a dozen ACC-funded studies said that working with industry does not necessarily suggest a conflict.

“Scientists by and large want to get at the truth, so this really becomes more a matter of a perception of a problem than a real problem, in my opinion,” said Frederick J. Miller, an independent consultant who once worked at the Hamner Institutes for Health Sciences, a North Carolina research institute formed in the 1970s by leaders from 11 major chemical companies.

“The people that serve on these panels … know if somebody is trying to make an argument that doesn’t hold water,” said Miller, who began his career in government.

However, studies have shown that when industry pays for research, it may influence the outcome. A 1998 analysis of more than 100 articles published on secondhand smoke reported that 37 percent found no health risk. At least 74 percent of the articles exonerating cigarette smoke were written by scientists with ties to the tobacco industry.

The American Chemistry Council has a stake in the outcome of research. Lobby disclosure forms from 2011 reveal that the ACC lobbied the EPA on its assessments of three highly controversial chemicals: dioxin, formaldehyde and chromium (VI). The group boasts on its Web site that “in 2012, we helped defeat or amend 281 chemical regulation and product ban proposals.”

The ACC, whose members such as ExxonMobil, Dow Chemical, Merck and Procter & Gamble are a who’s who of the Fortune 500, is one of the freest-spending lobby groups on Capitol Hill. In 2011, it laid out $12.6 million on lobbying, four times the amount spent by the National Rifle Association.

David Fischer, a senior director at the ACC, defended the group’s research program. “We feel we have an obligation to step up and fund studies to assist the agency — whether it’s EPA or others — to answer questions that might be posed about chemicals that we manufacture,” he said.

Asked if any of the ACC’s studies had ever shown that a chemical was more toxic than previously thought, Fischer replied, “I'm not aware of one right at this moment.”

The ACC said it was not involved in selecting the peer reviewers studying chromium (VI). “EPA's peer reviewers were selected by EPA. They were vetted in the normal peer review process from EPA and we from the ACC do not have any direct links to these people,” said Ann Mason, the ACC scientist who commissioned the group’s new studies on chromium.

However, few scientists in the world specialize in chromium, a compound used to add color to paints, make stainless steel, add finish to chrome and inhibit rust. During its lawsuits, PG&E hired several of these scientists as expert witnesses; some say the debate over the compound’s toxicity caused lasting splits in the tight-knit scientific world.

One of PG&E’s key experts was Steven Patierno, a former professor of pharmacology at the George Washington University School of Medicine and Health Sciences who had conducted numerous studies on the metal. Patierno, now the deputy director of the Duke Cancer Institute, has been an expert defense witness in seven chromium lawsuits. He hasn’t wavered in his view that drinking low doses of chromium (VI) does not cause cancer.

By early 2011, Patierno was selected for the peer review panel critiquing the EPA’s chromium (VI) findings. At a public meeting on May 12, 2011, he revealed a potential conflict of interest. There’s no recording or transcript of the meeting. Nothing in the EPA’s public record reveals the conflict. Two EPA officials who were there say they cannot recall what Patierno said. Patierno himself declined requests for an interview.

Jennifer Sass, a senior scientist at the nonprofit Natural Resources Defense Council, took notes at the meeting and said that Patierno revealed he was an investigator — though not a principal investigator — on the American Chemistry Council studies.

The ACC’s Mason disputes that Patierno was involved. But Travis O’Brien, one of the principal investigators on the studies and a former colleague of Patierno’s at George Washington University, told the Center for Public Integrity that Patierno was a consultant on the research.

Max Costa, now a professor at New York University’s medical school, knows Patierno well. When Costa taught at the University of Texas Medical School, Patierno worked in his laboratory. The two published research together. Costa said they became rivals when they took opposite sides in the PG&E lawsuit.

He argues that Patierno’s opinions are not credible because he works for the chrome industry. “He’s been a paid a large amount of money by them, and he’s totally biased because of that.”

Patierno levels the same charge against Costa, attacking his conclusions in a lawsuit as “unsubstantiated” and “severely flawed.” Patierno criticized the EPA for even citing Costa’s papers among hundreds of others in its report. In his peer review comments, Patierno said two of Costa’s articles should not be taken seriously because “they were written and published at a time when the senior author was actively engaged as an expert witness for the plaintiffs in high-profile hexavalent chromium lawsuits.”

Patierno was an expert witness for PG&E in the same lawsuits. When he was asked in a 2006 lawsuit if he discloses his expert-witness work for industry when submitting articles on chromium (VI), he answered no. Patierno said his articles were based on laboratory studies that were not relevant to his legal work.

Costa was originally listed as a candidate for the EPA peer review panel, according to documents obtained by the Center through a Freedom of Information Act (FOIA) request. Costa says he disclosed his work in the PG&E lawsuit but doesn’t know if that work disqualified him. An EPA official said privately said that Costa’s work as an expert witness may have kept him off the panel.

Industry ties and EPA panel

Patierno was not the only defense litigation expert who served on the EPA’s IRIS panel. Two others were John P. Wise Sr., a toxicology professor at the University of Southern Maine, and Joshua Hamilton, a chief academic and scientific officer at the Marine Biological Laboratory in Woods Hole, Mass., which is affiliated with Brown University.

Wise, who worked in Patierno’s laboratory as a graduate student, said that in 1997 he worked for a consulting firm and was assigned to do research for an industry client in the Hinkley lawsuit – but that he has not accepted industry money in the past 15 years. Wise added that he was never told the identity of the client and that he does not believe "such limited contact so long ago" influenced his opinion.

Hamilton was a defense expert in a PG&E chromium lawsuit that settled in 2006 and worked for the company as a consultant again starting in 2009, according to PG&E. PG&E acknowledged that it hired Hamilton in May 2011 — the same month the EPA panel met — to consult on the ongoing chromium cleanup in Hinkley. PG&E said it paid him $110,000.

Hamilton appeared before a California Regional Water Quality Control Board on June 8, 2011, to speak on behalf of PG&E about its cleanup of Hinkley. The EPA peer review panel issued its final comments one month later, on July 6, 2011.

Hamilton’s consulting work included criticism of the California EPA’s own scientific assessment of chromium (VI), which was nearly identical to the EPA’s.

In an eight-page statement to the water board dated July 9, 2011, Hamilton wrote that the state agency’s findings did not represent “established science.” He described California’s regulations as “overly protective.”

The PG&E director in charge of the Hinkley cleanup, Sheryl Bilbrey, said Hamilton’s work should not have affected his objectivity. “PG&E expects all of our experts to give us unbiased advice,” she said. “So we would never ask anyone to change their scientific opinion to fit something that we would want.”

Asked whether it was appropriate for an EPA peer reviewer to be working simultaneously for PG&E, the ACC’s Fischer said, “That sounds like a conflict of interest to me. Generally, the way you get around it is you just — you don’t appoint that particular scientist to that particular panel.”

It was not the first time Hamilton had been paid a substantial sum by PG&E. In 2001, Hamilton said he was surprised to get a $100,000 check in the mail before doing any work as an expert witness. According to his deposition, Hamilton talked to PG&E’s lawyers about the check and learned that it was on top of his hourly fee. PG&E ultimately paid Hamilton nearly $300,000 for his work on the lawsuit.

(Hamilton has since disclosed that he repaid the $100,000; see editor's note below)

“That’s completely outrageous,” said Francesca Grifo, director of scientific integrity at the nonprofit Union of Concerned Scientists. “I don’t know how anybody could stand up logically and say I got $100,000 but it didn’t affect how I handled this.”

Hamilton declined interview requests.

EPA farms screening to consultants

Working for a chemical company appears to violate the EPA’s guidelines on conflicts of interest. The EPA’s Peer Review Handbook says peer reviewers should appear to be impartial, defined as not having anything that “may cause a reasonable person with knowledge of the relevant facts to question the expert’s ability to carry out official duties without bias or influence.”

The handbook offers, as an example of a conflict, a scientist paid to be an expert witness for a chemical company in a class-action lawsuit.

Yet, the EPA doesn’t ask scientists if they’ve worked as expert witnesses or have taken money from industry. Instead, it turns that job over to private companies, which handle conflict-of-interest reviews in secret. All of the information the vendors collect, including financial disclosure forms, is “considered private and non-disclosable to EPA or outside entities except as required by law,” the EPA policy says.

The contractor examines candidates’ published work, and prospective panelists fill out a questionnaire detailing potential conflicts. Once the panel is picked, the contractor certifies to the EPA that “no unresolved actual or potential conflict of interest issues” remain.

What’s more, the ethics guidelines are not binding on contractors, and the EPA handbook says the agency should not override decisions on conflicts of interest. “EPA should not attempt to make any changes in the contractor’s conclusions as this would compromise the independence of the peer review conducted by the contractor,” the handbook says.

The EPA said it set the system up this way to ensure impartiality. But, the Center found, this structure helps shield the very conflicts the agency aims to avoid.

A year ago, the Center sought information on the screening of IRIS panelists through a FOIA request. The EPA withheld most documents, including emails between the vendors and agency.

Officials at Eastern Research Group Inc., the Massachusetts firm that vetted the peer reviewers on the chromium (VI) panel, did not return emails and phone calls. An official at another company handling peer reviews, Versar Inc., said he was prohibited by EPA from talking.

The EPA’s administrator, Jackson, and its chemical-assessment officials declined requests for on-the-record interviews. But an EPA official acknowledged privately that the agency was not fully aware of the chromium (VI) peer reviewers’ ties to PG&E. The official defended the use of private vendors, contending that if the EPA chose peer reviewers, it could pick scientists it knew would be friendly.

However, the EPA routinely selects scientists for other advisory panels. Critics said it’s not clear how checking financial disclosure forms would taint the process. The Peer Review Handbook does note that checking disclosure forms would activate the Federal Advisory Committee Act, a law meant to make panels more open.

“It’s bizarre,” Grifo said of the EPA’s secretive screening process. “At its core it’s supposed to increase the public trust in the system. If it looks like the whole system is rigged to begin with, then why should a citizen trust it?”

The EPA said it was working to reduce the potential for conflicts. “We are exploring the best ways to provide for public review of contract-managed peer review panels and ensure that contractors are held accountable for their assessment of any conflicts of interest,” the agency said in a statement.

The ‘pure science’ bottleneck

Some 700 new chemicals hit the market each year, adding to the tens of thousands already in use. Yet the EPA has assessed only 557 chemicals since the IRIS program began in 1985. A typical review takes six to eight years, sometimes much longer. It took 27 years for the agency to issue a partial assessment of dioxin, a byproduct of plastics manufacturing and burning.

The Government Accountability Office (GAO) concluded in 2008 that the IRIS program was so bogged down that it was in danger of becoming obsolete.

In 2009, EPA Administrator Jackson made bold promises within her first weeks in office to fix the program. She pledged to finish many more assessments and to try to complete each one within two years. Since May 2009, the EPA said it completed 24 IRIS assessments, “double the number” completed in the same time period prior to May 2009.

Yet its overall progress remains slow, and in the past two years, the program produced as few assessments as ever. Last year, the EPA planned to complete 40 assessments. It finished three.

The reasons for the logjam are complex. But it has become common for industry and its allies inside the federal government to push for delay. “Even a single delay can have far-reaching, time-consuming consequences, in some cases requiring that the assessment process essentially start over,” the GAO reported.

In the case of chromium (VI), evidence shows that industry worked closely with the EPA as the agency conducted its assessment. On Oct. 8, 2009, a scientist at a law firm representing chemical companies complained in an email that the EPA was pushing ahead on its assessments without waiting for studies to address “gaps” in the science.

“EPA moved Chrom VI up by about two years after ‘we’ entered into a process of planning research with them to address gaps,” wrote Richard Canady, a former scientist at the White House’s Office of Management and Budget (OMB), who was then working at the private law firm of McKenna, Long & Aldridge. “I’d like to make a case for EPA planning ahead in cooperation with industry.”

Canady’s email was sent to Nancy Beck, a toxicologist at OMB who reviewed the EPA’s findings. Beck referred Canady to an American Chemistry Council official for help in gathering data. A 2009 investigation by a subcommittee of the House Science and Technology Committee criticized Beck for improperly interfering with IRIS assessments during the George W. Bush administration. Beck now works for the ACC. She did not return a call last week seeking comment; an ACC spokesman said Tuesday he would seek her perspective.

In a recent interview, Canady said he could not recall the precise details from his email and declined to reveal clients for which he was working. But Canady said he thought the process of planning research with the EPA “wasn’t that formal.” Instead, industry scientists would call EPA scientists to find out what new data would help them in their chromium (VI) assessment, he said.

His 2009 email also said, “Peter made a point to me the other day about how boron and methylene chloride were good examples of working together on developing data ahead of assessments in ways that influenced the outcome.”

Canady said this was a reference to Peter Preuss, then the director of the EPA’s National Center for Environmental Assessment, which oversees IRIS.

The EPA originally planned to issue its chromium (VI) assessment last summer, giving the ACC time to finish its new studies. However, under Jackson’s imperative to quicken assessments, the EPA moved up its timeline by six to nine months.

When the EPA’s Cogliano rebuffed the ACC’s request for a delay, the trade association turned its attention to the peer review panel.

Critics say the industry uses comments on chemicals that are under review to overwhelm the agency.

“There’s a very elaborate process that involves multiple opportunities for industry to pick away and blast away and confuse and overload the staff of IRIS, and the IRIS staff reacts by trying to address each and every one of industry’s concerns,” said law professor Steinzor.

“The chemical industry has made IRIS its leading target, one of its leading targets, for spoil in the current age of greed,” Steinzor said

Of the 49 public comments submitted to the EPA on chromium before the peer-review panel met, the American Chemistry Council and its research partners authored 29 of them, totaling 1,661 pages. In addition, 10 other comments totaling 137 pages came from industry urging the EPA to wait for the ACC studies.

As the EPA stood poised to announce potential new safeguards for chromium (VI), the ACC had hired a scientific consulting firm, ToxStrategies, to manage the $4 million studies of mice and rats given the chemical for 90 days.

The panel met May 12, 2011, at a Hilton hotel near Reagan National Airport. Patierno was highly critical of the EPA’s findings and suggested the agency “absolutely consider the extensive new data being provided.” Hamilton and Wise agreed.

In a recent interview, Wise said he wasn’t entirely familiar with ToxStrategies’ findings, which hadn’t yet been published. But he assumed the delay would be short, only a few months. The EPA initially said the delay would take four years. Later, the agency said the assessment would be done this year.

Anatoly Zhitkovich, a professor at Brown University who chaired the EPA peer review panel, was upset with the results and wrote his own review published in the journal Chemical Research in Toxicology, according to Costa, a close colleague. Zhitkovich declined an interview request, but his article supported the findings of the EPA.

In lobbying for delay, the American Chemistry Council quietly enlisted the help of a small office within the U.S. Small Business Administration.

SBA Chief Counsel for Advocacy Winslow Sargeant, an electrical engineer by training, submitted a comment to the EPA on Oct. 5, 2011, challenging its scientific conclusions and urging it to delay its chromium assessment pending completion of the ACC studies. Winslow cited the peer review comments from Hamilton and Wise to support his argument.

But emails obtained through FOIA by the advocacy group Center for Effective Government revealed that the ACC helped shape the SBA letter. An ACC lobbyist, Randy Schumacher, sent an email to Sargeant’s office on June 28, 2011, asking for its help.

“Administrator Jackson calling upon her to stop the Cr6 risk assessment process to do exactly as EPA’s peer reviewers deemed advisable,” Schumacher wrote. “Since it appears EPA needs to hear from more constituents for it to listen to its own peer review team, would SBA be willing to send a letter to Ms. Jackson to weigh in on this matter?”

Later emails from Schumacher suggested editing changes to Sargeant’s letter. The SBA official has not responded to interview requests.

Frustration prompts reform push

Now the EPA is in the process of revamping its IRIS program once more. Cogliano has proposed releasing the names of prospective peer reviewers in advance, giving the public an opportunity to explore conflicts. “This will improve transparency in the peer review process,” the EPA said in a statement. The changes could be formally announced this week, as Jackson departs.

The ACC’s Fischer says he’s in favor of a conflict-of-interest policy that allows industry to participate on peer review panels. “Bias in and of itself should not necessarily disqualify a particular scientist from serving on the panel,” he said. “Industry perspective is a bias but so [is] every other perspective.”

The EPA is also weighing whether to set “stopping points” for new research, a deadline after which no additional studies would be considered. Kenneth Olden, a senior EPA official who oversees IRIS, has proposed announcing assessments two years in advance, giving industry time to complete new studies.

Such proposals drew criticism at an EPA meeting in November, with an environmental group’s scientist stating bluntly that industry seeks delays because it wants IRIS to fail. His comments drew faint gasps from a conference room filled almost entirely with industry consultants.

“The practice of waiting for one more study to be completed, as has happened repeatedly under IRIS – especially when that study is to be conducted by an entity with a vested financial interest in tilting the outcome – simply must stop,” said the scientist, Richard Denison, with the nonprofit Environmental Defense Fund. “Simply put, a decision delayed is health protection denied.”

This story has been clarified to reflect that, as an employee of a consulting firm, John P. Wise Sr. worked for an industry client in the PG&E lawsuit but that he was never told the identity of the client. After the story was published, Joshua Hamilton provided proof that he repaid a $100,000 check from PG&E more than three years after he received it. Hamilton now says he was confused about the July 2001 check at the time he was deposed in August 2002. A 2001 letter he provided from PG&E that came with the check says it was prompted by the company's Chapter 11 reorganization and was meant as "security for additional work you may be asked to perform on this matter." The letter says that Hamilton could keep the full amount of the check until his final invoice, but he was expected to repay the $100,000 when his work was done.