What next?

Since Woodie Cantrell lost his lawsuit against Ashland Inc. in March, several of us have been kicking around ideas about what may happen next.  Just idle speculation, you know.  Here are a few thoughts:

• Nothing will happen.  Folks want to forget about Ashland ever being here and move on with their lives.
• Someone will sue for property damages, based on actual damages occurring to their specific property, e.g. a radioactive un-remediated sludge pit that needs cleaning up.  The plaintiff would attempt to get the court to force Ashland to pay for the necessary clean-up.  Given the ongoing ecological disaster in the Gulf of Mexico, juries in the future may be more willing to slap Ashland around a little.
• Someone will sue for personal injury.  The water table here is polluted with Ashland's brine waste.  People drank this water from their wells, including the students and faculty of Blaine School.  There are several cancer deaths that could be tied to exposure to radioactive radium and barium isotopes through drinking water.

Most likely we will end up with a few sludge pit remediations paid for by either Ashland or the Kentucky taxpayer, and most people will continue with their lives happy to put Ashland Oil in their rear-view mirror.

Kentucky Supreme Court Rules in Favor of...Ashland

Oh, by the way, back on March 18 the Kentucky Supreme Court affirmed the decision by the Court of Appeals in favor of Ashland Oil in the Cantrell v. Ashland case.  Anyone surprised?

Despite all the legal maneuvering, the gamma rays and alpha particles are still doing their thing!

Smile, You're on Candid Camera Ashland Oil

On January 6, 2010 we wrote a blog about how the court in the Cantrell v. Ashland case disallowed the plaintiff’s videotape of Ashland’s contractors polluting a creek with liquid pumped from a radioactive sludge pit that they were contracted to clean up.  The jury never got to see what Ashland was doing in the name of “remediation.”  Well, thanks to a mysterious benefactor, the videotape is on the web and we all can see what the jury was not allowed to see.

First, a bit of background.  Ashland Oil negotiated an agreement with the state of Kentucky to identify and clean up radioactive sites in the Martha Oil Field.  An instance of this “remediation” was filmed in 1996 and was submitted as evidence in the Cantrell v. Ashland court case in which the plaintiffs sued Ashland for damages to their property.  The court did not allow this tape to be shown to the jury for several reasons listed here.

We can see the videotape here.  Here is what’s happening on the video:

0:04 – 0:15       Shows the extent of the sludge pit.  What a mess.

0:15 – 0:26       This is the waste line running from the sludge pit to the creek.

0:38                 A worker holding some kind of instrument

0:50                 This is the intake to the waste line that runs to the creek

0:59                 Check out the red “Danger” tape around the sludge pit

1:14 – 1:31      A backhoe loads some radioactive soil into a truck to be hauled away

1:31                 Shows a view of the creek

The court thought this tape would be prejudicial, so they disallowed it.  Remember, this is a clean up at just one remediation site.  Think about this clean up happening hundreds of times under one of the following possible scenarios:

-         The remediation efforts have specific procedures that:

o       Encourage dumping radioactive liquids from the cleanup site into creeks; or
o       Prohibit dumping radioactive liquids from the cleanup site into creeks, but the workers did it anyway; or

-         The remediation efforts do not have specific procedures of how to dispose of radioactive liquids from the cleanup site, so the workers improvised.

Any one of these scenarios results in a radioactive creek, so you see why the land owners are suing for property damages and don’t believe that the cleanup has been done properly.  Anyone think this property has been damaged?  How about that creek?  How about whatever is downstream?  Hopefully no cattle were drinking out of that creek.

Ashland, clean up your mess, again and again!

Exxon Must Pay $1.2 Million for Workers’ Radiation Exposure

Bloomberg reports that Exxon Mobil must pay $1.2 million to 16 workers exposed to radiation while cleaning used oil drilling pipes.  You can decide who won or lost.  Exxon Mobil denied it did anything wrong and argued that as none of the plaintiffs claimed radiation-related health problems, they couldn't recover damages.  Sound familiar?

(Hat tip: Mike Holmstrom)

Kentucky Court of Appeals: Let Them Eat Cake!

During one of the famines in France during the reign of King Louis XVI, it was claimed that when Queen Marie-Antoinette heard that the people were suffering due to bread shortages she was so detached from reality that she said, “Let them eat cake.”  Well, reality bit hard when the King and Queen later had their heads lopped off by an angry mob.

The American legal system seems to be a bit detached from reality right now.  Lawyers and judges settle common-sense cases with arcane legal mumbo-jumbo, you know, the “how many angels can dance on the head of a pin?” type stuff.  This may challenge their intellects and help build their careers but the relevance is lost on the rest of us when it results in warped justice.

These Ashland Oil lawsuits are full of examples of this type of legal nonsense.  For example, this business about a five year limit on filing for damages if someone poisons your well.  Here’s basically how it played out for Woodie Cantrell in court:

Woodie:           I’m suing Ashland Oil for poisoning my well with radioactive radium.

Ashland:           Yes, we admit we enhanced your well water with radium and are sorry you are not pleased.  However, you can’t sue us.  That was more than five years ago.  The state of Kentucky says you can’t wait more than five years to sue someone for poisoning your well.

Woodie:           I didn’t know my well was poisoned until now.

Ashland:           Sure you did.  You complained about salty taste, therefore you knew.

Woodie:           Wait a minute.  My water may have been a bit salty, but I didn’t know it was radioactive.

Court:               Ashland is right, Woodie.  It’s about when you knew that you had been wronged, not about when you knew the wrong was actionable in court.

Woodie:           Hold on.  It’s one thing to have salty water.  It’s another to have radioactive water.

Court:               Sorry Woodie.  It’s not about whether your water is salty or glows in the dark.  It’s all about when you knew Ashland had done you wrong.  And that was more than five years ago, Woodie.  So too bad.

Woodie:           So now I’m stuck with radioactive well water and Ashland won’t clean it up.  What can my family do if they can’t use our well?

Court:               Let them eat cake!

Ashland, clean up your mess!

EPA Has New Drilling Tip Line

Everyone around here should know that the EPA has set up a new tip line for anyone who wants to report suspicious activity related to oil and gas development and production.  You know, things like:

·        Dumping produced water into creeks;

·        Burying radioactive sludge in un-lined pits;

·        Leaving radioactive pipes lying around; or

·        The double whammy: dumping radioactive pits into radioactive creeks.

The EPA phone number is 1-877-919-4EPA and it’s free.  You can also e-mail them at: eyesondrilling@epa.gov and they have a US Mail address at their website if you want to make sure your tip is in writing.  This EPA tip line may be a bit late for Martha, but some of us may have drilling for deep gas happening on other properties and this might help with any problems.

(Hat tip: Amy Mall at NRDC)

Kentucky Courts as Scientific Gatekeepers

We can all breathe a lot easier knowing the great scientific minds of the Kentucky judicial system are on guard keeping the world safe from pseudoscientific mumbo-jumbo.  At least that’s what the Kentucky Appellate Court and Ashland’s attorneys would like us to believe.  We are skeptical.

The court in Kentucky likes to think of itself as a scientific “gatekeeper charged with keeping out unreliable pseudoscientific evidence” presented by expert witnesses.  They call it “narrowing the issues” using “orderly pre-trial proceedings.”  The court believes its role as gatekeeper is “especially sensitive in cases where the plaintiff claims that exposure to a toxic substance caused his injury, because a jury may blindly accept an expert’s opinion that conforms with their underlying fears of toxic substances without carefully understanding or examining the basis for that opinion.”

An example of this “gatekeeper” role occurred in the Cantrell v. Ashland trial.  The plaintiff’s expert witness testimony was excluded by the court because the witness used a linear model where large doses of radiation present a large risk relative to small doses, consistent with the dose modeling used by the US Environmental Protection Agency (EPA).  Ashland’s expert asserted that a threshold model applied, where radiation doses under a threshold value have no effect on human health.  The court excluded the plaintiff evidence completely, disregarding the EPA model.  This is wrong.  Since radiation dose risk assessment is NOT settled science how is one model valid and the other not per se?  The plaintiff model used by the EPA is valid for regulatory purposes and should have been admitted as reasonable evidence at trial.  It would be subject to cross-examination by Ashland’s attorneys and let the jury decide based on the merits of both models.  This is a jury of our peers, not children.  We believe the court inserted itself into the trial and affected the outcome by excluding this evidence since, without it, the plaintiffs had difficulty demonstrating the negative impact of Ashland’s radioactive waste on their properties.

The plaintiffs have an uphill fight on their hands.

Ashland: How do you clean up a sludge pit? Dump it in the creek!

In the Cantrell v. Ashland case the plaintiffs tried to get a videotape admitted as evidence that showed Ashland’s contractors on November 12, 1996 intentionally pumping contaminated water and oil from a sludge pit into Blaine Creek, a public waterway that discharges into nearby Yatesville Lake.  Ashland was literally caught on tape.  We don’t have a copy of the actual tape, but we do have an “artist’s interpretation” depicting the events of November 12, 1996 for your entertainment.

The lower court disallowed the videotape and the accompanying testimony of the cameraman as evidence for the following reasons:

1. The court viewed the conduct on the videotape as a remedial measure for the contamination.  So let me get this straight… removing the radioactive waste from a sludge pit and dumping it into a public waterway is a standard remedial measure?  On what planet?  The videotape shows a clear example of the problem, not the remedy.
2. Ashland’s pollution of Blaine Creek was activity on other property, not the plaintiff’s property.  Here we go again.
3. The court viewed the tape as unfairly prejudicial toward Ashland.  Never mind that it merely shows what happened: Ashland pumping radioactive waste into the creek.
4. Finally, seizing on the plaintiff’s statement that the tape depicted a criminal act, the court stated, “Well then, you’re in the wrong Court right now, then.  You ought to be in criminal court.”  Since when is criminal evidence not admissible in a civil case?  Ask O.J. Simpson.

Needless to say, if the court won’t admit this type of evidence, the plaintiffs are fighting an uphill battle against Ashland and the courts.  What kind of message does this send to landowners in oil and gas country?

Ashland, clean up your mess!

Ashland: Your Water Table Ends at Your Property Line

The Cantrell v. Ashland case has gone on appeal to the Kentucky Supreme Court.  Written briefs have been submitted to the Court by both sides and oral arguments are pending.  We scratch our head when we read this stuff, since the lower court’s actions are riddled with errors, handing the verdict to Ashland.

One of the big errors committed by the lower court was restricting the testimony of Bob Grace, a petroleum engineer with oil field experience and particular expertise in water flooding and other secondary recovery techniques.  Grace reviewed the records for several wells, including those on the plaintiff’s property.  He opined that Ashland’s methods were reckless, dangerous and grossly negligent and contaminated the land, surface waters and aquifers of the Martha Oil Field.  He added that the improper use of nitroglycerin and high pressure water injection fractured the underground rock formations, permitting radioactive material to migrate between formations and contaminate the oil field.

Ashland objected to this testimony because they had not committed all these activities specifically on the plaintiff’s property.  Grace was not allowed to talk about the use of nitroglycerin or hydrofracking since these techniques were not used of the plaintiff’s property per se, even though they were used throughout the Martha Oil Field as part of Ashland’s secondary recovery program.  Hydrofracking on a neighbor’s property is inadmissible evidence if the neighbor is not part of the lawsuit.  This is ridiculous since the effects of nitroglycerin explosions and hydrofracking are not likely to be limited by property lines.  You guys in the Marcellus Shale zone should take note of this legal technique, since it may be used against you in the future.

The plantiffs really got the shaft from the lower court when Grace’s testimony was excluded since they could not demonstrate that Ashland’s behavior throughout the Martha Oil Field, which Ashland managed for decades, was a gross deviation from industry standards.  Ashland’s D.C. law firm bragged on their web site that “One of the foundations of the favorable verdict, and its affirmation on appeal was the success of key pretrial efforts led by members our team to limit the testimony of plaintiffs’ experts.”

It seems to us that once again the lawyers get to pad their resumes and we get to glow in the dark.

Legal Struggle: Let's Make a Deal

The village of Martha has had challenges in dealing with Ashland Oil to clean up the radioactive waste spread around the oil field.  These challenges have resulted in several lawsuits filed by residents against Ashland.  These lawsuits have been dragging through the courts for over a decade.  In a previous post, we discussed the Cantrell v. Ashland lawsuit and Ashland’s ridiculous legal position.  In this post we will discuss Rigsby v. Ashland and why we think it shows Ashland’s true intentions of saddling the property owners and the State of Kentucky with the cost of the cleanup of Ashland’s radioactive mess.

The plaintiffs in Rigsby v. Ashland sued Ashland in 1996 for trespass, nuisance and negligence claims related to the radioactive waste spread on their properties by Ashland’s oil production activities.  In 1997 the plaintiffs settled with Ashland; Ashland gave the plaintiffs an undisclosed sum of money and the promise to participate in the “Martha Reclamation Program.”  In return, the plaintiffs released Ashland of its liability.  The Martha Reclamation Program was the result of a 1995 agreement between the State of Kentucky and Ashland Oil in which Ashland agreed to remediate and restore property in the area including that owned by the plaintiffs.  So basically the plaintiffs agreed to waive Ashland’s liability for the radioactive pollution in exchange for money and an agreement by Ashland to clean up the mess.

All was well until 2007 when the plaintiffs hired an independent radiation officer to inspect their properties and hazardous levels of radioactive material were found, despite the properties obtaining a release from the State that they had been cleaned up by Ashland.  The plaintiffs sued Ashland seeking performance of the remediation and additional compensation.

The Kentucky Court of Appeals sided with Ashland.  The Court basically said that the plaintiffs signed an agreement to relieve Ashland of its liability, received money in return, and if they have issues with the quality of the radiation cleanup they should address the State of Kentucky, not Ashland.  So it appears in this case that Ashland gets to pass any additional costs incurred to appropriately clean up the properties to the landowners and/or the taxpayers of Kentucky.

Is it any wonder that other plaintiffs might be hesitant to settle their lawsuits with Ashland?

Ashland, do the right thing and clean up your mess!

Legal Struggle: Don't Cry Over Spilled Radium

The village of Martha has had challenges in dealing with Ashland Oil to clean up the radioactive waste spread around the oil field.  These challenges have resulted in several lawsuits filed by residents against Ashland Oil.  These lawsuits have been dragging through the courts for over a decade.  We will comment on one of these lawsuits, Cantrell v. Ashland, to demonstrate the ridiculous position that Ashland Oil has taken in dealing with the affected landowners.  The Kentucky Supreme Court has agreed to hear oral arguments concerning the case.

In Cantrell v. Ashland, the plaintiffs sued Ashland Oil for damages resulting from Ashland dumping radioactive waste on the plaintiffs’ properties during the process of separating oil from the pumping water.  The radioactive waste was the pumping water infused with radium-226, a water-soluble radioactive isotope with a half-life of 1600 years, that was naturally present in the oil-bearing formation.  This radioactive pumping water was brought to the surface, separated from the oil, then disposed of in sludge pits and local streams by Ashland, creating radioactive hot spots around the oil field.

The plaintiffs contend that they suffered a health hazard and a decrease in property value due to the radioactive contamination.  Ashland says that just because the property is contaminated with radiation does not mean a health hazard exists, since radiation “cannot be seen, heard, felt, smelled, tasted or otherwise detected by human senses.”  Ashland also takes the position that the property damages are “stigma” claims, that the plaintiffs should not be compensated for the “stigma” of having radioactive waste on their property.

Think about the position that Ashland has taken.  They admit to dumping radioactive waste on the properties… who else could have done it?  However, Ashland claims that the radioactive contamination is not a health hazard since you cannot see, hear, feel, smell, taste or otherwise detect it with human senses and that Ashland is not going to compensate the plaintiffs for the “stigma” of having radioactive hot spots on their properties.  This is outrageous.

We believe Ashland is trying to use legal maneuvering and technicalities to avoid owning up to the responsibility of cleaning up the mess they made.  We also believe Ashland would like to stick the landowners and the taxpayers of Kentucky with the cleanup bill, and they are hoping to use the court system of Kentucky to do it.  We will show you why we believe this in the next post.

Shame!  Clean up your mess, Ashland Oil!