Articles Posted in Environmental Liability/Toxic Torts

The plaintiffs in an air pollution lawsuit are requesting immediate access to a landfill in Jefferson Parish, Louisiana in order to conduct environmental testing. The lawsuit is one of roughly eighty that have been filed against the parish landfill, claiming that an abundance of strong odors is making living conditions unbearable in the surrounding area. Such tests, the plaintiffs argue, are essential to a well-rounded, well-informed case.

Against the plaintiffs’ motion are a multiplicity of tests that have already been conducted by the parish and state and that have concluded that the majority of the odors have origins distinct from the landfill in question. One particular study conducted by a California-based company pointed to a number of other potential sources of the smells, such as two privately owned landfills adjacent to the parish landfill. On the contrary, plaintiffs argue that there has been no “comprehensive analysis” of the gases emitted from the landfill, but rather, the state tests only looked for a limited subset of chemicals, resulting in an insufficient test scope.

Thus, to resolve the apparent testing issue, plaintiff’s attorneys are requesting access to the parish landfill to conduct their own private testing of the emissions and have hired a Maryland-based environmental scientist for the job. “Absent a prompt opportunity to inspect and sample at the landfill,” they say, “petitioners will lose the opportunity to obtain the most pertinent site-specific information that would help establish what has transpired over the last year and how those conditions affected petitioners.”

The Louisiana Sportsmen Coalition is in a battle with the Louisiana oil industry over rights to use coastal marshwaters for their respective enterprises. Representatives of local fisherman argue that oil companies who own nearby lands have unjustly also claimed ownership of adjacent waters that flow in and out of manmade channels. The sportsmen state that the waters, though very good for fishing, are being treated as off-limits, and the fishermen themselves are being treated as trespassers. Specifically, they say, “It has gotten to the point where [oil companies] are having local law enforcement agencies, like the sheriff’s office and justices of peace, write criminal trespassing tickets to people.”

The conflict came to a head last year when a professional Bassmaster fishing tournament was held in these areas. The world-renowned fishermen, individuals who make a living by these tournaments, unknowingly wandered into “privately owned” waters and were met by authorities. Following the tournament, the Bass Angler Sportsmen Society (B.A.S.S.), the national organization responsible for the well-known Bassmaster tournaments officially announced that it would no longer schedule professional tournaments in Louisiana tidewaters, a decision that will, without doubt, negatively impact the state’s fishing industry. Thus, as the sportsman’s coalition argues, the battle over water access is more than a debate about who can travel where; it is actually a battle over the prioritization of industries, and favor traditionally lies with the oil industry.

Unfortunately for the fishermen, a recently proposed bill that would have granted public access to the marshwater failed in Louisiana’s House of Representatives. The bill argued that because the waters are “running waters”—they freely flow into positively public waterways such as the Gulf of Mexico—they cannot be partitioned as either public or private, and therefore, their default status would be considered public. Opponents of the bill argued that just as one can claim ownership of dry land, one can claim ownership of the bottomlands underneath the water, for coastal erosion is constantly converting dryland into bottomland. The House’s vote reinforces Louisiana’s status as one of the only coastal states that does not consider tidal waters open for public use.

A lawsuit has been filed against the St. John the Baptist Parish School Board as a result of potentially carcinogenic emissions from a nearby neoprene manufacturing plant. The plant, located in Laplace, Louisiana, is one of only a few in the country that produces polychloroprene, a solid substance used to make adhesives, automotive or industrial parts, coatings, dipped goods, neoprene wetsuits, and the like. Consequently, however, manufacturing plants of this kind emit into the air a gaseous form of the liquid chemical chloroprene, which the Environmental Protection Agency has deemed to be a “likely carcinogen”.

The chemical plant has been owned by Denka Performance Elastomer since 2015, but it was formerly owned by Dupont Performance Elastomer who operated the plant since 1969. The specific health effects of chloroprene are not definitively known; however, many local residents are concerned that they are at risk. These fears have been previously articulated in lawsuits against Denka, but now those fears are directed at the school board. According to the case, which was filed by a parent whose child attends the school, “There is presently and has been for years a very serious health hazard and/or life-threatening health hazard to the children/students who attend school at Fifth Ward Elementary School.”

In response to the suit, the EPA established six monitoring stations around St. John Parish, one of which was located at the school in question, and data confirmed the suspicion of high chloroprene levels at the school. Denka, however, maintains the position that chloroprene is being wrongly depicted as a harmful chemical. According to the 2015 National Air Toxics Assessment also conducted by the EPA, St. John Parish residents have the highest risk of cancer from an airborne pollutant, but it is unknown if this risk is due to chloroprene or some other cause. With more research being conducted by the day, the parish school board is determined to prove the safety of its students.

On December 6, the 16th Judicial District Court in St. Mary Parish Louisiana ruled in favor of the Bayou Bridge pipeline, issuing a mere $450 punishment for trespassing in an eminent domain suit filed by three local residents. The lawsuit, filed in late July of 2018, argued that Energy Transfer, LP (formerly Energy Transfer Partners), the owner of the pipeline, illegally began construction on privately owned land without proper permission.

The Bayou Bridge pipeline is a 163-mile underground oil pipeline intended to transport oil from the Louisiana-Texas border to St. James Parish. Many residents do not mind their land being used to house the pipeline, but many other residents are very opposed to the idea, claiming that the land being used is “not valueless, vacant land…. The property is part of a larger vital and vibrant ecosystem filled with life that includes trees, wildlife, fish, and birds, and it plays an important role in the economic health and well-being of the state beyond its borders.” Thus, for the landowners who filed the suit, the challenge is not about money, but it is rather about protecting the land.

The defense claimed that they had eminent domain over the land, allowing them to take it through expropriation due to the fact that the land was used for the public’s interest. The Court agreed, allowing them to continue the pipelines construction, but assessed a small penalty for trespassing—150 dollars to each plaintiff—given that they did not exercise due diligence in notifying the property owners prior to the beginning of construction. The plaintiffs continue to hold that it is not in the public’s interest to facilitate coastal erosion, the natural consequence of digging, carving, and drilling into Louisiana’s marshland. Additionally, the plaintiffs argue, the pipeline places the utilized land at risk of an oil catastrophe, citing Energy Transfer’s history of 3.6 million gallons of oil spilled in the last sixteen years.

A neoprene-producing chemical plant is facing multiple lawsuits as a result of potential carcinogens released into the air. The Denka Performance Elastomer plant located in Laplace, Louisiana, is said to be one of the only chemical plants in the country that releases the chemical chloroprene into the air.

According to a study by the Environmental Protection Agency, chloroprene is “a volatile, flammable liquid used primarily in the manufacture of polychloroprene,” 90 percent of which is found in solid form to make adhesives, automotive or industrial parts, coatings, dipped goods, or in this case, neoprene. One result of the polychloroprene manufacturing process is the release of chloroprene into air as exhaust. Similar EPA studies assert that chloroprene is a “likely carcinogen” and that safe levels of chloroprene in the air remain under 0.2 micrograms of chloroprene per cubic meter of air.

Local residents claim that their proximity to the plant causes them to live in fear that they will one day suffer from cancer, and their fear is not unfounded. A 2015 EPA survey of the air showed that St. John Parish, Louisiana, had the highest risk of cancer from an airborne pollutant in the country. It is unknown if this finding is directly related to chloroprene; however, the plant in question is one of only fourteen in the country that produce the chemical, and it has been in operation since 1963 (though its owner company has changed since its founding).

A Coast Guard mandate has finally been issued to plug an oil leak off the coast of Louisiana. The destroyed Taylor Energy platform, MC-20 Saratoga, has been leaking since Hurricane Ivan which struck the Gulf Coast in 2004. The leak releases between 11,000 and 29,000 gallons of oil each day, which has been catastrophic. Measured across the fourteen years that the rig has been damaged, the spill could total 148 million gallons of oil or more.

Though Taylor Energy Company is no longer an active oil supplier—according to records, they have one remaining employee—they have been ordered by the Coast Guard to establish a containment plan including a potential contractor. The leak was initially discovered in 2010 when researches were conducting evaluations of the Deepwater Horizon spill and noticed a sheen on the water that could not have been caused by that disaster. Further research was then conducted as to an alternate cause, and the result was the detection of the Taylor Energy leak.

Last week’s Coast Guard order states that Taylor’s containment plan must “eliminate the surface sheen and avoid the deficiencies associated with prior containment systems.” Failure to comply with the order will result in a fine of $40,000 per day. Naturally, the energy company is disputing the order, claiming that the sheen on the water’s surface is not a result of an ongoing oil leak. Instead, they say, the sheen is a result of the oil-saturated seafloor that unavoidably releases oil and gas bubbles, and thus, the oil wells are no longer actively leaking.

That which has been boosting Louisiana economically for decades could at the same time be sinking it, literally. The oil industry has found a comfortable home in the southern part of the United States, hugely feeding the economies of Texas and Louisiana for as long as the current generations of residents can remember. In fact, the two states currently lead the country in oil production, and in Louisiana, the industry employs nearly 45,000 individuals. While statistics such as these paint the oil industry in a favorable light, though, many groups are calling its full impact on Louisiana into question.

Louisiana attorneys are certainly familiar with coastal litigation, protecting coastal plains and shores from environmental negligence or abuse, but as regards the oil industry, coastal litigation has almost exclusively been reserved for major incidents such as the Deepwater Horizon oil spill of 2010. Major spills, however, are not the only occasions in which oil drilling damages the Gulf Coast. In fact, an August 2018 article of The Bayou Brief argues that the drilling itself is cause for environmental concern as it expedites coastal erosion. That which is largely responsible for building up Louisiana’s economy—oil—is also responsible for tearing down its shores and critical wetlands.

Why, then, has the state not seen an increase in litigation to combat this coastal damage? According to the aforementioned article, the answer is candid but simple: money. Industry economists argue that if it faced increased litigation, it risks falling into another major recession leading to job cuts and profit decreases. Advocates for the continued drilling without environmental responsibility argue that plaintiff’s attorneys who pursue such litigation selfishly have no concern for the economic growth of the state; however, this is simply not the case. Rather, the pursuit of such coastal litigation places the long-term priority of ecological conservation above the short-term monetary concerns putting the ecosystem at risk.

This week, a panel of five federal judges denied a motion filed by oil companies seeking to consolidate forty-one separate lawsuits against them for coastal land loss and other damage caused by oil and gas exploration, production, and transportation in five Louisiana Parishes, including Vermilion Parish, which is represented by Richard Broussard, partner at Broussard & David. The defendants saw the oil companies’ motion as a delay tactic and the judges apparently agreed.  “The (panel) had no trouble recognizing the most recent efforts of large oil corporations to postpone a trial through procedural maneuvering,”  said Broussard. “Their effort to further stall a judgment requiring them to clean up their mess was soundly rejected.”

Further reading here:

Big Oil loses effort to consolidate Louisiana coastal restoration litigation

In Freeman v. Fon’s Pest Management, Inc., the Louisiana Supreme Court found that the lower courts erred in granting the defendant’s motions in limine and striking the expert testimony of four of the plaintiff’s experts. The lawsuit alleged that the defendant used a pesticide which contained a chemical called fipronil to treat plaintiffs’ home for termites. Following the treatment, plaintiffs began to suffer headaches, nausea, dizziness, and confusion. To prove causation, plaintiffs retained four different experts – three toxicologists and one Certified Industrial Hygienist. In response, the defendant pest management company filed pre-trial motions to exclude the testimony of plaintiffs’ experts, claiming their testimony did not meet the standard for admissibility under Louisiana Code of Evidence article 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.

The district court granted the defendant’s motions in limine, striking plaintiff’s experts because it found: 1) none of the proposed experts had expertise regarding fipronil; 2) none of the four experts had written or contributed to any peer-reviewed articles regarding the effects of fipronil (or any pesticides) in humans; 3) none of the four experts attempted a dose reconstruction to determine the amount of exposure to fipronil allegedly suffered by the plaintiffs; 4) none of the experts reviewed any biological or air quality data to establish the plaintiffs were exposed to fipronil; and 5) no articles or studies reviewed by the experts proved any causal connection between fipronil and the plaintiff’s claimed injuries. In addition, the testimony of all four experts conflicted on the effects of fipronil exposure.

The court of appeal affirmed.

The U.S. Coast Guard and the Occupational Safety and Health Administration are calling for stronger safety measures aboard oil platforms after an explosion on a Lake Pontchartrain oil rig left multiple workers injured and one worker missing. Five workers sustained critical burns from the blast, while two others sustained trauma-related injuries. A search-and-rescue mission was sent out for the missing employee, whose body was recovered five days after the explosion. The explosion occurred on October 15th, two miles from Kenner and around twenty miles north of New Orleans in an incorporated area of Jefferson Parish.

According to the City of Kenner Government, the platform (used for the transfer of oil) ignited because of cleaning chemicals that were not sufficiently hosed off. The explosion could be heard from miles away and houses up to 10 blocks away “actually shook from the boom.” Many of the employees on the platform were rescued subsequent to the explosion as fires continued to burn on the platform.

The environmental impact of the explosion is yet to be determined. The Coast Guard will continue to test the surrounding waters to determine if large amounts of oil were deposited into Lake Pontchartrain. Many Kenner residents have gone to social media to voice their concerns about the potential future environmental impacts of the explosion. Lake Pontchartrain is part of a larger ecosystem called the Pontchartrain Basin, an area consisting of many rivers, bayous, and swamps that could potentially be impacted by oil from the explosion. South Louisiana citizens are fearful of a similar situation to the Deepwater Horizon disaster seven years ago.

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