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OSHA seeks to reduce exposure to highly useful, highly toxic metal

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The metal beryllium is an engineer’s dream: Lightweight yet strong, capable of handling harsh environments underwater and out in space.

It’s also a medical nightmare. Minute amounts of its dust and fumes can trigger a disabling, sometimes deadly lung disease. It can cause cancer, too.

The Occupational Safety and Health Administration said it will on Thursday propose to sharply tighten the level of beryllium to which workers can be legally exposed, belatedly responding to decades of studies showing that the current OSHA limit does not protect people’s lungs.

“This proposal will save lives and help thousands of workers stay healthy and be more productive on the job,” Labor Secretary Thomas E. Perez said in a statement.

This is OSHA’s second attempt at a tougher beryllium standard. It proposed one in 1975, only to see it beaten back by the secretaries of energy and defense. Beryllium is a critical component in nuclear weapons, and both agencies argued at the time that the country’s national defense could be compromised by lowering exposures.

But the U.S. Department of Energy, which oversees the nation’s nuclear-weapons facilities, had a change of heart years ago. In 1999, it approved rules to require respirator use for its workers and its contractors’ employees when beryllium levels reached 0.2 micrograms per cubic meter of air — one-tenth of OSHA’s current limit, and less than the scrapped 1970s proposal, too.

OSHA’s newly proposed standard, which would apply to an estimated 35,000 workers in a variety of industries, would reduce the current 2-microgram limit for an eight-hour exposure to 0.2 micrograms. It would also mandate medical exams for exposed workers and set down other requirements.

Nearly 100 deaths and 50 serious illnesses could be prevented each year if the rule takes effect, OSHA said. Besides lung cancer, exposed workers risk getting lung-scarring chronic beryllium disease, which is triggered by an allergic reaction to the metal and can kill.

The country has compensated nearly 2,500 current or former nuclear weapons workers who developed chronic beryllium disease, according to OSHA. But the full toll is unclear; beryllium has also been used in products ranging from space telescopes to golf clubs to dental appliances. OSHA believes that about 245 people are diagnosed with chronic beryllium disease each year.

As far back as 1999, as the Energy Department was finalizing its rule, OSHA said it would update its beryllium requirements. Petitions that year and in 2001 from groups such as Public Citizen and the Paper, Allied-Industrial, Chemical and Energy Workers International Union urged speedy action. The delays since then are typical for OSHA, which blames long waits for health standards on the process imposed by Congress.

The requirements for issuing a single standard are “onerous and burdensome,” OSHA chief David Michaels said in an interview. Michaels said OSHA had completed some work on the beryllium proposal when he arrived in late 2009, and has prioritized it since then, but only recently cleared the final hurdles.

Industry opposition has played a role in health-standard delays. That’s part of the beryllium story, but in recent years, something unusual happened: Two bitter opponents during the 1970s fight — the nation’s primary beryllium product manufacturer and a major union — joined forces to write a model standard in hopes of seeing action.

Materion, once known as Brush Wellman, and the United Steelworkers sent their recommendations — including a 0.2-microgram limit — to OSHA in 2012. Michaels called the collaboration “a historic opportunity.” He hopes it spurs similar efforts in other sectors.

“If the industry and a union came to us and said, ‘We want to help you,’ it would certainly move things much more quickly and we would be able to save far more lives,” Michaels said.

Not all workers who could come into contact with beryllium are covered by the proposed rule. Some exposed to trace amounts in raw materials, such as construction workers using coal slag for abrasive blasting work, were left out. OSHA said it would seek comment on whether those workers should also be included. Michaels said the agency is particularly concerned about people working near blasting, who don’t have the respiratory protection that blasters are required to wear.

OSHA’s Advisory Committee on Construction Safety and Health recommended last year that construction workers be fully covered by the standard. Though it did not follow that suggestion, OSHA said it is seeking information to determine whether to include blasting operations in the standard.

The possibility of inclusion worries a major supplier of coal slag abrasives. The company, Harsco Corporation, met with the White House’s Office of Management and Budget last September, when that agency began vetting the proposed beryllium standard. Harsco said in a presentation that the construction industry “Should Not be Included in the Proposed Rule.”

Harsco, which declined to comment Wednesday because the proposal had not been issued yet, told the OMB that applying the proposed standard to construction would impose needless costs. Current OSHA rules sufficiently protect construction workers from beryllium in coal slag, the company said, disputing the results of a National Institute for Occupational Safety and Health study in 2007 that found beryllium above the current standard on one of two days that researchers sampled a blasting operation in Maryland.

Coal slag in blasting is one of the alternatives to silica, which can cause another type of deadly lung disease in workers exposed to its dust. OSHA hopes to finalize its silica standard — 40 years after starting down that road — by the end of 2016.

NASA workers inspect one of the James Webb Space Telescope’s mirrors, which are made of beryllium, a useful but highly toxic metal. The Occupational Safety and Health Administration is proposing to tighten the amount of beryllium to which workers can be exposed, after decades of studies demonstrating that the current limit doesn’t protect health. Jamie Smith Hopkinshttp://www.publicintegrity.org/authors/jamie-smith-hopkinshttp://www.publicintegrity.org/2015/08/05/17790/osha-seeks-reduce-exposure-highly-useful-highly-toxic-metal

Drunk on power: Booze distributors ply statehouses to keep profits flowing

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Rhinegeist Brewery invested $250,000 in trucks and employees to bring its beers into Kentucky, just a few miles from its fledgling brewery in downtown Cincinnati.

Sales boomed in the “thirsty” Kentucky market, said brewery co-founder Bryant Goulding.

But in March, just three months after the deliveries began, the legislature there voted to make Rhinegeist’s distribution business illegal.

“We were crestfallen, heartbroken, disappointed, really frustrated by the political process,” Goulding said. “We felt like we really didn’t have genuine access or really didn’t get genuine consideration from a lot of the politicians.”

Rhinegeist had run into a little-known but powerful political force at play in nearly every state: alcohol distributors. They don’t brew the beer, and they don’t serve it. But as wholesalers who function as the legally mandated middlemen between alcohol makers and retailers, they have a wide-ranging influence on the booze Americans drink, marking up prices and controlling the growth of craft brewers and small wineries.

Alcohol distribution is a $135 billion industry in the U.S. that has made many rich, including Cindy McCain, head of her family’s beer distributing company and wife of Sen. John McCain, R-Ariz. To protect the post-Prohibition regulations that guarantee their business, wholesalers bankroll scores of lobbyists and give millions of dollars in contributions in election seasons. And because wholesalers are often local, family-run, American-owned businesses, they are popular with politicians.

“The beer wholesalers are a lot like the teachers unions,” said John Conlin, a Colorado management consultant who works with beverage companies. “The teachers unions have incredible clout, too, and the reason is there are teachers in every congressional district out there… And historically that was the same with beer wholesalers.”

But recently two economic forces have encroached on wholesalers’ power and territory, putting them on defense: big multinational brewer Anheuser-Busch InBev, which boasts $47 billion in annual revenue; and the burgeoning craft beer industry that wants more freedom to distribute its own beer, offer tastings in new places or sell to-go containers called growlers.

At least 22 states had bills in 2015 seeking to allow alcohol makers to circumvent distributors and sell their products directly to customers, according to the National Conference of State Legislatures.

They faced firm opposition this year because state alcohol wholesaler alliances had at least 315 registered lobbyists spread across every state and the District of Columbia, except Wyoming, according to a Center for Public Integrity analysis of state records.

And alcohol distributors are by far the most involved in state politics out of those in the booze business. They gave roughly $14.6 million to state candidates, parties and ballot issue groups in the 2014 elections, while alcohol manufacturers gave about $5.3 million and retailers gave roughly $2 million, according to data from the National Institute on Money in State Politics.

They are politically active on the federal level, too, but because alcohol is largely regulated at the state and local level, wholesalers aim most of their political firepower at statehouses. Their giving in 2014 state races was more than double the approximately $5.9 million that they gave for congressional contests.

“As local businesses representing Main Street America, beer distributors take pride in participating in the political process and support a wide range of candidates,” the National Beer Wholesalers Association’s spokeswoman Kathleen Joyce said in an email.

Using that political firepower, wholesalers defended their economic turf this year in several states, including Kentucky, Georgia and North Carolina, by advocating for the exclusive right to distribute alcohol. And now wholesalers are also trying to expand their turf by going after the legal recreational marijuana market proposed in Nevada.

Fighting a beer giant

This winter, 38 lobbyists roamed the halls of the Kentucky State Capitol, employed by one side or the other of the beer debate. The alcohol bill they were discussing, lawmakers joked, was the Lobbyist Full Employment Act of 2015.

“You couldn’t walk the halls without a lobbyist from one side or the other wanting to be in your ear,” said Sen. Jimmy Higdon, a Republican from Lebanon in central Kentucky.

Wholesalers were pushing a bill that prevented brewers from owning a license to distribute beer — a move to close a long-overlooked gap in Kentucky’s regulatory system and effectively force Anheuser-Busch InBev to auction off its two distributorships in Kentucky.

Rhinegeist, with its newly opened distribution business, was also hit.

“We were just kind of a gnat caught between these two Mack trucks colliding,” Goulding said.

Anheuser-Busch InBev owned a distributorship in Louisville for decades. In 2014, it bought another one in Owensboro, a move that set off alarm bells among wholesalers who worried the beer giant would corner the market as part of a reported campaign to buy more distributorships.

Wineries, breweries and distilleries are generally required by state laws to hire separate distributors to get their drinks to customers, with exceptions that vary by state. States made these rules after Prohibition:  some acting to avoid returning to the days of saloons controlled by major alcohol producers that pushed drunkenness; some to decentralize the industry and its political power; and others motivated by former bootleggers with political ties who wanted to stay in business as state-mandated wholesalers.

Today, distributors are in a power position. They can stifle the growth of craft breweries or small wineries by refusing to distribute their products. Or they can foster them by helping them reach customers they couldn’t efficiently reach on their own. Having separate distributors can also push up the price of alcohol. 

Some public health advocates credit the layers of regulation that come from this middleman-style system for helping prevent cheap or dangerous libations from creeping into the market in a country where alcohol is already the third leading lifestyle-related cause of death.

Yet Daniel Okrent, author of “Last Call: The Rise and Fall of Prohibition,” called the public health arguments sanctimonious and said there’s no evidence that wholesalers protect public health. “They are essentially protecting what is in effect a quasi-monopoly business,” he said. “They are very powerful political lobbies with a great deal of money.”

In Kentucky, wholesalers turned to the legislature to bar Anheuser-Busch InBev from having a piece of their market, just as wholesalers have successfully done in eight other states since 2010, according to the National Conference of State Legislatures.

Two Kentucky distributorships in particular, Chas. Seligman Distributing Company and Kentucky Eagle Inc., led the charge against Anheuser-Busch. Their executives and employees have given at least $213,000 to state and local elections since 2000, according to a Center for Public Integrity analysis of state records. Kentucky Eagle’s owner Ann Bakhaus gave more than $124,000 of that, including $13,300 last year. She said she had her business in mind when she did so.

“Our business is highly regulated,” she said. “There’s a whole lot of parts and pieces to it, and so I’m always trying to watch out for our business and for our state, too.”

During the 2014 elections alone, the Kentucky Beer Wholesalers Association gave more than $14,000 to Kentucky lawmakers. Comparatively, Anheuser-Busch has given little — just one $500 donation in 2008, according to the National Institute on Money in State Politics. Neither alcohol group responded to multiple requests for comment.

Both sides lobbied hard. And both sides took to the airwaves. Wholesalers spent $151,000 on Facebook, newspaper, TV and radio ads, state records show. Anheuser-Busch, while outspent in political contributions, tried to make up for it with nearly $330,000 in advertising.

“Greedy special interests are trying to run Anheuser-Busch out of the state, seeking for them to close a business they’ve owned for nearly 40 years,” said a TV ad from the beer company.

In the end, though, it wasn’t even close. The wholesalers’ bill passed the Senate 23-13 and the House 67-31. The world’s largest brewer and Rhinegeist lost. Anheuser-Busch InBev said Tuesday it plans to shed its Kentucky distributorships. Rhinegeist has already dismantled its distribution business there.

Rep. Adam Koenig, a Republican from Erlanger, fears the law will have a broader chilling effect.

“After seeing Rhinegeist basically have the rug pulled out from under them, and a company that’s been operating legally with no complaints for 30 years be forced to divest, it makes you think twice about opening a business in Kentucky,” he said.

Limiting the craft brewers

This spring, North Carolina state Rep. Chuck McGrady, a Republican from Hendersonville, sent his colleagues a draft of a bill he planned to introduce. The bill would have helped local craft breweries by allowing them to distribute more of their own beer. Not long after, two of the co-sponsors called and asked him to remove their names.

“Those legislators told me the beer and wine wholesalers in their area had already called and they were big contributors to the campaign,” McGrady said. “They still supported the bill, but they didn’t want to be on it. It was really rather striking.”

Craft brewing had taken off in North Carolina, as it has in the rest of the country. The number of craft breweries in the U.S. more than doubled from 2008 to 2014, reaching 3,418, according to the Brewers Association, a national craft brewers group based in Boulder, Colo. And they’re getting more organized — the U.S. now has local craft brewers associations in every state.

In North Carolina this year, craft brewers saw an opportunity to improve state laws to allow them to grow. Currently, brewers in North Carolina can distribute 25,000 barrels of their own beer. If they want to grow larger, they must hire a distributor for all of their beer, a move some breweries are loath to make.

McGrady’s bill would have given brewers slightly more wiggle room by not counting beer sold at taverns (usually only a few thousand barrels) toward the 25,000-barrel limit.

But North Carolina Beer & Wine Wholesalers Association Executive Director Tim Kent said his members didn’t want to cede any ground and opposed McGrady’s bill and a similar one.

“North Carolina already has by far the most progressive beer laws of any state from Virginia to Texas,” he said. “You’ve got a small group of brewers who are trying to deregulate the industry…at the expense of public health.”

Alcohol wholesalers in North Carolina have given more than $740,000 to state lawmakers since 1996, according to data from the National Institute on Money in State Politics. They had seven registered lobbyists working this spring. On the other side, the craft brewers together had four registered lobbyists but had given comparatively little to political candidates.

“We’re putting a lot of money into growing our business and making sure we’re getting new equipment and hiring people and stuff like that,” said Erik Lars Myers, the president of North Carolina Craft Brewers Guild and the founder of Mystery Brewing Company in Hillsborough. “That means that we don’t have a lot of extra money to spend on lobbying. They have a significant financial advantage over us.”

Both bills stalled when a committee co-chairman, Rep. James Boles, wouldn’t let them be heard, brewers said.

Boles, a Republican from Moore County, received more than $17,000 from alcohol wholesalers for his unopposed 2014 re-election, including $5,000 from the North Carolina Beer & Wine Wholesalers Association PAC. Aside from the money he gave his own campaign, the association is Boles’ second most generous donor over the course of his six-year career in the statehouse, according to the National Institute on Money in State Politics. He did not respond to requests for comment.

The bills’ failures mean that at least four craft breweries in the state won’t expand, hire more people or make more of their specialized local beer, Myers said.

“There’s going to be a lot of people who want beer who won’t be able to get it,” he said.

Settling for compromise

A similar story played out in Georgia this spring, when brewers put forward a bill that would have allowed breweries to sell a limited amount of beer directly to customers who visited. What they wound up with instead was the ability to offer free beer to patrons who pay for a tour.

“We don’t sell you beer, but we take your money and you leave with beer,” said Nick Purdy, president of Wild Heaven Craft Beers just outside of Atlanta. “It’s a bit of a theater of the absurd.”

Georgia Craft Brewers Guild Executive Director Nancy Palmer said it was the guild's first time going up against the longstanding relationships the wholesalers have built, in some cases over generations.

“The wholesalers are astute politicians,” she said. “If I were in their position, I would be doing exactly what they do. The depth and breadth of their influence is certainly formidable.”

Alcohol distributors in Georgia have given nearly $1.2 million in contributions to state lawmakers since 1992, according to data from the National Institute on Money in State Politics. They also invite lawmakers to an annual, paid conference at a seaside resort. The state distributor association did not return requests for comment.

The man credited with reworking the bill to allow only paid tours and free beer, Sen. Rick Jeffares, has received $6,900 from wholesalers since 2010, including $4,750 out of the $81,000 he raised for his unopposed re-election bid in 2014. The Republican from McDonough, south of Atlanta, did not respond to requests for comment.

Still, for the brewers it wasn’t a total loss. Palmer said they were pleased to get at least the compromise that allows them to sell tours.

Finding new territory

Wholesalers are now flexing political muscle not just to protect their current businesses, but to enter a new market: marijuana distribution.

Alcohol salesmen often see pot as a competitor vying for consumers’ dollars. And liquor industry advocates have bristled at pot activists’ assertions that marijuana is safer than alcohol.

But wholesalers in Nevada gave a combined $87,500 to a 2016 ballot measure campaign to legalize recreational marijuana there — about 13 percent of the amount raised through December, according to the most recent report available. The ballot initiative, if passed, would mandate that for the first 18 months of legal weed, only licensed alcohol distributors could distribute the drug, giving the alcohol wholesalers a head start in the pot distribution business.

Backers of the initiative consulted with alcohol distributors when they wrote the measure to avoid a fight. The 18-month window allows experienced distributors to help get the industry off the ground, according to campaign spokesman Joe Brezny.

“Experience matters,” he said.

For those without political connections, access to new markets is proving more difficult. Back in Cincinnati, Rhinegeist Brewery gave up finding new turf on its own. Instead, it’s re-entering Kentucky through a wholesaler. It’s a move co-founder Goulding thinks will work out well for sales, but he’s still disappointed.

“It seems really strange that government can come and, something that was legal a few months ago, just take it away,” he said.

Inside J. J. Taylor Distributing Florida Inc. of Tampa, Florida, one of the many alcohol distributors that function as middlemen between alcohol producers and retailers. Nationwide, such distributors give millions to state candidates and bankroll scores of lobbyists each year to preserve their lucrative turf.Liz Essley Whytehttp://www.publicintegrity.org/authors/liz-essley-whytehttp://www.publicintegrity.org/2015/08/06/17770/drunk-power-booze-distributors-ply-statehouses-keep-profits-flowing

Report: cause for 'alarm' on possible work-related causes of breast cancer

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A new summary of the science makes a strong case for occupational links to breast cancer and calls on Congress, regulators and researchers to pay more attention to chemical exposures and other risk factors.

“Working Women and Breast Cancer: The State of the Evidence,” is the product of more than two years of work overseen by the San Francisco-based Breast Cancer Fund. A panel of experts reviewed scientific studies, most published in the past 25 years, and found ties between the disease and exposures to solvents; pesticides; tobacco smoke; ionizing radiation and other toxic materials. There also was an association with night shift work.

“Research is inadequate, but there is enough to raise alarm about women’s work, occupational exposures and breast cancer,” the report concludes. “At the same time, policies are insufficient to protect worker health.”

The report touches on a subject raised by the Center for Public Integrity’s “Unequal Risk” project, launched in June. The series noted that enforceable workplace exposure limits for many toxic substances don’t exist, and those that have been set by the Department of Labor’s Occupational Safety and Health Administration in most cases aren’t protective. As the Breast Cancer Fund put it, “women and men in the workplace are routinely exposed to levels of chemicals that would not be allowed in their homes. The relatively lax requirements of some occupational settings lead to both higher levels and longer exposure periods than would otherwise occur in a residential or commercial setting.”

Among the report’s recommendations:

  • Women should be included in occupational studies. They have “historically been excluded…which means that health issues that predominantly affect women, including breast cancer, have been at best understudied and at worst ignored.”
  • Congress should pass legislation “to change the paradigm on how chemicals in the workplace are managed,” empowering OSHA to make employers use safer alternatives when possible or to “incentivize innovation” when not.
  • OSHA “should take full advantage of its current authority” by setting stricter exposure limits. The agency tends to allow exposures that can cause one additional case of cancer for every 1,000 workers; the Environmental Protection Agency, in contrast, seeks to hold cancer risks to 1 in 100,000 or 1 in 1 million when it regulates exposures to the general public.

In 2012, the Center published a story about high rates of breast cancer among female workers in Canada’s automotive plastics industry. The story reported the results of a six-year study that found the women were almost five times as likely to develop the disease, prior to menopause, as women in a control group.

The workers had been exposed to a variety of solvents, heavy metals, flame retardants and the hardening agent bisphenol A, used in polycarbonate water bottles and other products. “A lot of these chemicals should be removed from the workplace,” breast cancer survivor Sandy Knight, who worked at two Ontario plastics plants from 1978 to 1998, told the Center.

Breast cancer victim Carol Bristow worked as a machine operator in a plastic auto parts factory in Windsor, Ontario, for 23 years. A 2012 study that found a high breast cancer risk for plastics workers supports her belief that on-the-job exposures to toxic fumes and dust played a role in her illness.Jim Morrishttp://www.publicintegrity.org/authors/jim-morrishttp://www.publicintegrity.org/2015/08/06/17788/report-cause-alarm-possible-work-related-causes-breast-cancer

In Republican debate, little talk about big money

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Super PACs running presidential shadow campaigns? Nary a word.

Dark money” nonprofits pumping hundreds of millions of dollars into politics? Nada.

Seventeen Republican presidential candidates — 10 in a main event, seven in an undercard — gathered Thursday in Cleveland and largely avoided debating several weighty campaign finance issues that have already dominated Election 2016.

But there were a few exceptions amid their sparring over foreign policy, social issues, immigration and education.

Midway through the debate, Fox News co-moderator Bret Baier explained that Donald Trump has given money to numerous Democrats over the years.

Baier then noted that Trump has previously stated that politicians do favors for contributions.

“You better believe it,” Trump told Baier.

“I give to everybody. When they call, I give,” Trump said, quickly adding that he considers the nation’s political money system a “broken system.”

Trump said that a decade ago, after he made a donation to Democratic presidential frontrunner Hillary Clinton, then a senator, he asked Clinton to come to his wedding.

“She had no choice, because I gave,” Trump said. (A Clinton aide said Trump's assertion was "ridiculous" and "hurt" Clinton's feelings.)

Trump then noted that he’s given money to some of the nine presidential hopefuls on the stage with him during the two-hour debate at Quicken Loans Arena.

Former Arkansas Gov. Mike Huckabee, however, interrupted him, saying he hasn’t received a contribution from Trump.

“You’re welcome to give me a check, Donald, if you want,” Huckabee said.

Left unsaid between the two White House hopefuls: According to federal campaign finance records, Trump in 2012 made a $2,500 to Huck PAC, a political action committee led by Huckabee.

In another exchange, New Jersey Gov. Chris Christie poked at Sen. Rand Paul of Kentucky for giving speeches on the floor of the U.S. Senate — then quickly posting the videos online and fundraising off of them.

Paul didn’t immediately have an opportunity to respond, and the two politicians never returned to the issue.

From January through June, three dozen presidential candidate-backing super PACs collectively raised more than $266 million while the campaigns of 2016 presidential hopefuls collectively raised just half that much — about $130 million — according to a Center for Public Integrity review.

Election 2016 is on pace to easily become the most expensive federal election in U.S. history.

K Street wasn’t a major focus of either debate. But Washington, D.C.’s lobbying class didn’t escape completely unscathed.

If you’re looking for a candidate who will “get in bed with the lobbyists and the special interest … then I’m not your guy,” Sen. Ted Cruz of Texas said.

During Thursday afternoon’s warm-up debate, featuring seven Republicans whose poll numbers ranged from dismal to virtually nonexistent, former New York Gov. George Pataki took a swipe at the “crony capitalism” of Washington, D.C.

It’s a place, he said, where “lobbyists and the powerful can get tax breaks and tax credits, and the American people don't get laws in their interest.”

Pataki added that he can change the situation: “I can do that. And I can do it regardless of what the makeup of Congress is because I did it in New York state.”

Former Hewlett-Packard Chief Executive Carly Fiorina at one point noted that she — unlike Trump — has not received a personal phone call this year from former President Bill Clinton, a Democrat.

“Maybe it's because I hadn't given money to the [Clinton] Foundation or donated to his wife's Senate campaign,” Fiorina snarked.

Trump, of course, wasn’t around to argue.

Co-moderator Bill Hemmer noted to former Virginia Gov. Jim Gilmore that Clinton said she wouldn’t nominate someone to the Supreme Court who supported the Citizens United v. Federal Election Commission decision.

Gilmore said he would appoint people to the Supreme Court who “would follow the law.”

So what of Clinton?

She sent an email to supporters Thursday night saying she wasn’t watching it.

Instead, she was fundraising off it.

“I wanted to take a moment to ask you to chip in $1 or more right now to fight for the vision you and I share,” Clinton wrote.

 

 

Businessman Donald Trump speaks as former Florida Gov. Jeb Bush listens during the first Republican presidential debate at the Quicken Loans Arena Thursday, Aug. 6, 2015, in Cleveland.Dave Levinthalhttp://www.publicintegrity.org/authors/dave-levinthalhttp://www.publicintegrity.org/2015/08/06/17801/republican-debate-little-talk-about-big-money

Thirteen years and counting: anatomy of an EPA civil rights investigation

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SANTA FE, New Mexico— On June 26, 2014, Deborah Reade got a certified letter from the Environmental Protection Agency that was nearly a decade in the making.

“During the course of the EPA’s investigation,” the letter read, “it was determined that additional information is needed to clarify this allegation.”

Reade was incredulous.

Her original complaint to the EPA’s Office of Civil Rights, in 2002, seemed like a lifetime ago. Back then, she was research director for a group called Citizens for Alternatives to Radioactive Dumping. She’d alerted the agency to a potential pattern of discrimination against Spanish-speaking residents by the New Mexico Environment Department.

Her complaint focused on Triassic Park, a proposed commercial hazardous-waste disposal site, and a public participation process she said made it hard for poor and Spanish-speaking residents to voice concerns. The project was permitted by the state in 2002. Three years later, the EPA agreed to investigate Reade’s claims. 

Then: silence, for nine years. Reade moved on, disillusioned with the process. Now, the EPA was pulling her back in.

“When I got this [2014 letter], I kind of groaned, ‘Really?’ ” Reade said during an interview in her Santa Fe home. “I was like, ‘Oh no. I don’t even remember how to do any of this,’ you know?”

By all accounts, Reade should have been free of the matter years ago.

EPA regulations dictate the timeline the Office of Civil Rights must follow when investigating complaints of discrimination allegedly committed by recipients of EPA funding. Within five days of delivery, the EPA must acknowledge receipt of the complaint and within 20 days decide if an investigation will occur. The investigation itself should take no more than 180 days, barring special circumstances.

The office’s director, Velveta Golightly-Howell, declined to comment on the Triassic Park investigation. She said, however, that “cases do age. That is just the nature of civil rights programs.”

A Center for Public Integrity review of 265 complaints filed from 1996 to 2013 shows that the EPA has failed to adhere to its own timelines: On average, the office took 350 days to decide whether to accept a complaint and allowed cases to stretch 624 days from start to finish. A consultant’s report, which examined cases from 1993 to 2010, found that the agency accepted or rejected just 6 percent within the allotted time period. Half took a year or more to be adjudicated.

Reade’s case — and the nearly decade-long investigation — is an extreme, but not unique, example of the agency missing its mark.

The EPA’s online docket, last updated in March, lists 17 cases accepted for investigation that are still awaiting disposition. The earliest was filed in 1994, the most recent in 2013.

In July, Citizens for Alternatives to Radioactive Dumping and four other groups signed on to a lawsuit asking a court to force the EPA to act on their civil rights cases, some of which have been pending since 1994. The lawsuit, filed by the environmental law firm Earthjustice, calls the delays “unlawful” and “unreasonable,” and asks that the EPA be compelled to issue preliminary findings in the cases and impose remedies when warranted.

Environmental justice advocates say such delays send a message to state regulators and residents that complaints are not important and make it hard for EPA to reconstruct events many years after the fact. People are left to set their own standards about what discrimination looks like.

“They don’t care that this inequality is rampant and that’s the message,” Reade said. “You’re powerless.”

A ‘good, safe spot’

Triassic Park exists only on paper.

The hazardous waste facility, first permitted by the state in 2002 and now up for renewal, was never built. If it had been, it would be located on 480 barren acres nearly indistinguishable from any stretch along U.S. Highway 380 in southeastern New Mexico.

Pass a few cows grazing along the roadside and you’ll eventually find mile marker 196, 36 miles from Tatum and 43 miles from Roswell. The ground in this area is pockmarked with grass, tall weeds and errant debris — a beer can here, a broken comb there — likely thrown from the window of a passing car. Walking stick cactuses dot the landscape and tumbleweeds skip across the road. A small mesa rises in the distance, but for the most part, this part of Chaves County is flat and desolate, with only the occasional rumble of a semi-truck to break the silence.

“We were trying to find the sorriest piece of ground we could,” said Larry Gandy, whose father, Dale, conceived of the project along with a family of local ranchers, the Marleys. “It turned out they had a spot that grazes few cows, and it is a spot that actually sits below the water table. So we found a good safe spot with nothing we could contaminate, and that’s how we come to that site.”

The plan was to turn the site into a landfill that could accept up to 10,000 cubic yards of industrial waste each month. The company, Gandy Marley Inc., would be required to monitor the site for contamination for 30 years in exchange for taking in dangerous substances such as lead, mercury, benzene and PCBs, as well as soil from remediation sites and other debris. The original plan also included two evaporation ponds and four tanks that, combined, could hold upwards of 5 million gallons of waste.

In Chaves County — ground zero for UFO devotees and home to 2009 Kentucky Derby champion Mine that Bird — there are about 11 people for every square mile. Southeastern New Mexico is known as “Little Texas” to some — thanks to similar terrain and economies — and the “nuclear corridor” to others, a nod to a uranium enrichment plant and the U.S. Department of Energy’s Waste Isolation Pilot Plant, which stores radioactive waste.

Most county residents identified as Hispanic according to recent Census Bureau estimates. More than a third speak a language other than English at home and 21 percent of people live below the poverty level.

“From an environmental point of view, you have to understand the racism of putting [these facilities] in an area where people can’t defend themselves,” said Noel Marquez, an activist and artist in Artesia.

The early 1990s brought changes in EPA rules that left many clients of the Gandys’ oil field services company scrambling to figure out how to properly dispose of their hazardous waste. They applied for an NMED permit for Triassic Park in 1993, but the public review process didn’t begin until 2001. 

Over those eight years, opposition began to percolate.

Victor Blair and Deborah Petrone had read Roswell Daily Record articles about Triassic Park. Petrone owned a postage-stamp-size plot of land about seven miles away, and the two began researching the facility, traveling to the Roswell Public Library to examine the permit. It was hundreds of pages long; Blair was astonished at the scale of the project.

“They were permitted to take scores of tons of each of these different chemicals,” Blair said. “And so it was just like, ‘Oh, man.’ That’s when we made the decision to fight.”

They connected with other activists who earlier had raised objections. Blair called Jaime Chavez, then an environmental justice organizer with the Water Information Network in Albuquerque. 

Chavez explained their plight.

“He said, ‘If you two are the only ones involved in the resistance, that’s laughable,’ ” Blair recalled. “’You’re gonna have to be undercover and raise a stink. That’s all you can do right now. And when the stink raises a profile, it’ll attract other people who don’t like the smell. Then, maybe you can get enough people around you to make some noise.’ ”

Blair became the de facto man-on-the-ground, taking advice from Chavez during regular phone calls.

“You had to mobilize the community,” said Chavez, now an organizer with the Rural Coalition, a farmworker advocacy group. “The plan was to go door to door, getting these commitments, talking with your neighbor, spreading the word and delivering folks to these hearings, which we did.”

NMED sensed heightened public interest in the project and insisted that Gandy Marley hold public meetings, said Steve Pullen, who helped draft the permit for Triassic Park and is now compliance manager for NMED’s Hazardous Waste Bureau. Meetings were set for Roswell, Santa Fe, Tatum and Hagerman.

On July 19, 2001, Deacon Jesus Herrera of the Immaculate Conception Roman Catholic Church in Dexter walked into the Hagerman Elementary School auditorium with 15 or 20 other people from his parish. They’d come to him with concerns about Triassic Park.  This, Herrera said, was supposed to be their meeting — a chance to ask questions and get responses in Spanish.

Things didn’t go as planned.

As the meeting progressed in English, Herrera rose and asked if the presentation also would be made in Spanish.

It wouldn’t, he was told. An interpreter was on hand but would only translate attendees’ questions into English. Some activists remember officials telling Herrera to “sit down and shut up.” The activists said they were incensed and embarrassed.

To Herrera, a clear message was sent to the Spanish-speaking members of the crowd: “What we say is not important.”

Most of the 150 or so residents began to walk out, forming a steady stream from the auditorium into the hallway. Organizers said they had submitted at least 20 requests for multilingual notices and language services to NMED during the permitting process.

Pullen said he thought Herrera had a “pretty good point” about the presentation. But, since the meeting was voluntary, he wasn’t sure it was his place to insist the entire proceedings be translated.

“I can only suggest,” Pullen said, “and perhaps I should have.”

State law does not require that permit applicants hold public meetings, though residents can request a public hearing through the NMED secretary to voice their concerns.

The meeting served as the basis for the civil rights complaint Deborah Reade filed with the EPA on September 12, 2002. The 27-page complaint alleged that the NMED had discriminated against Spanish-speaking residents during the Triassic Park permitting process.

Beyond the translation issues with the Hagerman meeting, the complaint pointed to the absence of Spanish versions of the permit, a fact sheet and several meeting notices. It alleged that the proposed facility would subject Hispanic residents to disproportionate levels of pollution.

The EPA didn’t accept the complaint until 2005. Reade prodded the agency in a letter dated November 20, 2007, submitting fresh allegations of public comments missing from the hearing record.

 “We are writing to you to amend our original complaint because of new information that we received several months ago,” she wrote.  “Unfortunately, we don’t actually expect that you will act on this amendment because of EPA’s history of ignoring virtually all complaints that are not dismissed outright.”

Digging up the past

Overcoming her hesitancy, Deborah Reade eventually responded to the EPA’s 2014 request for more information.

She enlisted the help of her friend, Petrone, who had since moved to Ohio, to interview residents. Petrone, who was finishing up her Ph.D. in education, agreed to tape some of the interviews.

The pair drove 3 ½ hours down U.S. Highway 285 from Santa Fe to Dexter to interview anyone who remembered anything about Triassic Park. They went through boxes of documents long stored in attics seeking information that might be helpful for the EPA’s investigation. Reade was heartened by what they found.

“People had not forgotten,” she said. “They were still discouraged because they felt they had no power and no chance to make a difference. Now I understood the enormous hurdles people had gone through to come to that Hagerman meeting — to make it all the way to testify, the few of them that did. And I went back actually energized from that experience.”

Some things have changed since 2001.

At the NMED, institutional knowledge about Triassic Park is dwindling. Most of the managers involved in the permitting process have left the agency, said Pullen, who has been there 23 years. The NMED is still digitizing the six boxes of documents associated with the permit, he said, and many have been archived.

“It’s going to be a challenge after 15 years to recall all of the circumstances during that Triassic Park permitting process,” Pullen said.

Nonetheless, he said, the controversy all those years ago changed the way the agency does business.

“It wasn’t until the Triassic permit process in late 2001 that people were asking for these translation services,” Pullen said. “And since then, we have translated every permit hearing that we’ve been involved in at the Hazardous Waste Bureau.”

The agency also posts all of its notices in Spanish and has also translated some notices, and arranged for translators, in the languages of the Navajo and Zuni tribes, who might be concerned about facilities in the western portion of the state, Pullen said.

Then-Gov. Bill Richardson signed an executive order in 2005 requiring all departments, boards and commissions to make sure that public health and environmental notices are posted in Spanish, English and tribal languages or dialects where appropriate.

“It just became the practical and best way to do business,” Pullen said.

But the state is still far from utopia for low-income and minority communities, said Doug Meiklejohn, executive director of the New Mexico Environmental Law Center. He pointed to the 2013 repeal of a rule that required the lining of oil and gas waste pits as an example.

Environmental injustice “definitely exists in New Mexico,” Meiklejohn said. “It’s an issue because the state laws and state regulations don’t protect politically powerless people.”

Meiklejohn said his office gets about 100 requests for help each year. Most are turned away, he said, because the three lawyers can only add so many cases to their workload.

Larry Gandy said he doesn’t remember much about the initial permitting process for Triassic Park. His father, Dale, had overseen the details of the project, which received a 10-year permit from the NMED in March 2002.

Dale Gandy died on Dec. 30, 2011, less than a month after his 70th birthday and six years after EPA accepted the civil rights complaint for investigation.

“Everything you want to talk about happened many years ago, and the gentleman that dealt with everybody is no longer here,” his son said.

But Gandy Marley hasn’t abandoned Triassic Park.

The company initially tried — unsuccessfully — to position the proposed facility as a destination for waste from Superfund cleanups and, for a time, as a nuclear fuel rod recycling facility through a now-defunct Energy Department program. The clients it hoped to serve found other ways to dispose of their waste, leaving Triassic Park with a permit but no customers.

In 2011, Larry Gandy filed an application to renew the permit, as he is required to do every 10 years. The notice of that re-application was issued in English and in Spanish. The filing reflects a dramatically scaled-back project; it is essentially a placeholder, Gandy said, to keep the permit alive while the company figures out its next steps.

“It is the only permit like this in the state of New Mexico, so we still believe at some point in time, it might still be a viable project,” Gandy said.

Deacon Herrera, who spoke out at the tumultuous Hagerman meeting in 2001, is still a voice for his community. These days, however, he focuses on immigration reform.

He takes his lead from parishioners, he said, and furor over Triassic Park has died down.

“Maybe they lost their faith in that matter,” Herrera said.

By September 2014, Reade had collected two binders of documents, interviews, and written statements about Triassic Park.  She sent it to the EPA’s Office of Civil Rights, her hope tempered with realism.

“I don’t really expect anything from them,” she said.

It’s been 312 days.  Her case is pending.

Chaves County, New Mexico, is the proposed site of the Triassic Park hazardous-waste facility. Though the facility exists only on paper, a complaint filed with the Environmental Protection Agency’s Office of Civil Rights alleged that the state permitting process discriminated against Spanish-speaking residents. Talia Bufordhttp://www.publicintegrity.org/authors/talia-bufordhttp://www.publicintegrity.org/2015/08/07/17706/thirteen-years-and-counting-anatomy-epa-civil-rights-investigation

Candidates without a clue

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If folks who watched Thursday night’s Republican presidential debate were expecting the candidates to tell us what they’d do to replace Obamacare if they could get rid of it, those folks would have been disappointed.

In fact, the 10 candidates who are currently leading the polls said so little about health care during their two hours on stage that one has to wonder if they’ve given any thought to an Obamacare alternative. They haven’t.

The only ones who uttered more than a sound bite about health care were Ohio Gov. John Kasich, who explained why he expanded his state’s Medicaid program with Obamacare money, and Donald Trump, who claimed that even though he’d said good things about the single payers systems in Canada and Scotland, he preferred a “private system” for the U.S. “without the artificial lines around every state.”

Wisconsin Gov. Scott Walker, former Arkansas Gov. Mike Huckabee and Sen. Marco Rubio all noted that they would work to repeal the Affordable Care Act, but made no mention of what they would replace it with. Huckabee contended that the Social Security program had been “robbed” to pay for Obamacare, but he didn’t offer an explanation.

Trump’s mention of artificial lines around states apparently was a reference to the fact that many health insurers sell coverage in only one state. Ever since the Affordable Care Act was signed into law five years ago, many Republicans have said that one of the first things they’d do if they ruled Washington would be to allow insurers to sell policies across state lines.

It sounds like a swell idea, and inevitably leads to suspicion that the federal government is somehow making it impossible for insurance companies to do that. But that’s not the case. Obamacare actually contains a provision that would facilitate the sale of coverage across state lines. Starting next January, in fact, states can form compacts with each other to encourage insurers to sell their policies in multiple states.

What the GOP seems to want to do is the opposite of what the party normally espouses: that the federal government should stay out of the states’ affairs as much as possible. What Republicans apparently desire is to have the federal government force the states into allowing insurers  licensed elsewhere to sell whatever they want to sell in every state—regardless of the individual states’ laws and regulations. A lot of state lawmakers and regulators don’t like that idea at all. It essentially would take away their ability to set their own standards for insurance company solvency as well as for the adequacy of the plans out-of-state insurers might want to sell.

Many consumer groups are also opposed. They fear it would open the door once again to the marketing of junk policies that don’t provide much coverage, a door the Affordable Care Act closed, and for good reason.

Aside from that, however, history has shown that even when states throw out the welcome mat to out-of-state insurers, insurers don’t rush in. In fact, as Georgia found out a few years ago, not a single insurer from any of its neighboring states applied to sell coverage in the Peach State even after lawmakers there said, essentially, “y’all come on over.”

Here’s why. For an insurer to succeed in any given market, it has to have a sizable base of enrollees. And insurers know you can’t just wish that into being. The selling-coverage-across-state-lines idea runs into a chicken-and-egg dilemma. You have to have thousands—maybe even tens or hundreds of thousands—of customers in order to negotiate good discounts with local doctors and hospitals. Insurers need good discounts from providers to be able to offer policies at a competitive price. If they can’t get those discounts, they won’t be able to sell coverage at or below the premiums set by more well-established insurers. Who would want to buy a policy from a newcomer that charged more than a company you were already familiar with? Not enough to make moving into another state worthwhile. About the only time that has happened successfully is when another insurer is able to buy an already established insurer. But that, of course, would defeat the purpose of allowing coverage to be sold across state lines.

This idea is based on the belief that the more insurers there are in a given market competing for business, the less health insurance will cost. But no one who knows how health insurance really works would make that argument. Big hospitals and physician practices might like it because few if any of the insurers would be able to negotiate from a position of strength. Not only would premiums not fall, they probably would go up. Chances are the amount we spend on health care would go up too, for another reason: higher administrative costs. Imagine how many more people a doctor would have to hire just to deal with a boatload of new insurers. Or to deal with a bunch of politicians who don’t know what they’re talking about.

Republican presidential candidates from left, Chris Christie, Marco Rubio, Ben Carson, Scott Walker, Donald Trump, Jeb Bush, Mike Huckabee, Ted Cruz, Rand Paul, and John Kasich take the stage for the first Republican presidential debate on Aug. 6, 2015, in Cleveland.Wendell Potterhttp://www.publicintegrity.org/authors/wendell-potterhttp://www.publicintegrity.org/2015/08/10/17806/candidates-without-clue

In California, an unsatisfying settlement on pesticide-spraying

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OXNARD, California– It was the U.S. Environmental Protection Agency’s first and only preliminary finding of discrimination in a civil rights case. The agency saw it as a clear victory for people like Maria Garcia, who’d complained about pesticide spraying on strawberry fields near her children’s school.

In 2011, after a decade-long investigation, the EPA negotiated a settlement that required the California Department of Pesticide Regulation to add a site to a trio of farming communities — including Oxnard — to be monitored for airborne chemicals. The agreement showed the EPA’s “steadfast commitment to protecting and advancing civil rights,” the agency said in a press release.

Garcia, however, was unimpressed.

“It was as if we hadn’t made the complaint,” she said.

Garcia and her husband, Reuben, both retired farmworkers, raised their six children in a house near Colonia and Roosevelt Streets, in the heart of La Colonia, a low-income, predominantly Latino community in central Oxnard. She said her children, now grown, were exposed on a routine basis to toxic chemicals, such as the fumigant methyl bromide, sprayed near their schools. The spraying has continued, and Garcia worries about her grandchildren.

“I don’t want anything to happen to my babies because they’re going to go to these schools that are surrounded by strawberries,” she said.

Garcia is one of six complainants in a case known as Angelita C., after the first name of one of the parents who filed the complaint. The case is both EPA’s biggest success and one of its most notorious failures.

The EPA’s Office of Civil Rights is tasked with investigating allegations that agencies receiving federal funds are acting in discriminatory ways. The finding, the agency said, showed the agency was taking the complaints seriously. “EPA is committed to ensuring that all Americans receive equal environmental and health protections,” the office’s then-director, Rafael DeLeon, said in a press release announcing the decision. “Environmental protection is public health protection and everyone, especially children, deserve the opportunity to live, play and learn in healthy communities.”

Current office director Velveta Golightly-Howell declined to discuss specific cases during a 30-minute telephone interview with the Center for Public Integrity and NBC News but said that since she came to the agency in 2014, she has focused on ensuring “complaints are resolved promptly, effectively and thoroughly.”

But in many ways, the Angelita C. case remains a symbol of public disenchantment. A Center analysis of 265 complaints submitted to the civil-rights office found that settlements are rare, investigations often cursory and findings of discrimination all but non-existent.

In Oxnard, the EPA’s highly touted settlement with the state took a decade to hammer out. Activists say the deal was weak and negotiated under a cloak of secrecy. Garcia is suing the EPA to try to get the settlement overturned and force the agency to redo what she believes to be a bungled investigation.

Falling poison

A rooster crows, and at 7 a.m. on a brisk Sunday in April, the strawberry fields outside of Rio Mesa High School already bustle with farm workers.

The workers wear jeans and hoodies to cover their limbs, hats to ward off the baking sun, gloves on their hands and scarves around their faces. For some, only the skin around their eyes shows. A small radio hangs from one woman’s pants as she works. The sound of cumbia music undulates, growing louder, then softer, as she shifts her body to reach deeper into the plants. 

For years after Maria and Reuben Garcia came to Oxnard in 1966 from Tepatitlán, in Mexico’s Jalisco state, they too, worked the fields. Reuben was a supervisor and Maria a campesina weeding fields that bore strawberries, flowers, squash, cucumbers and cauliflower. She noticed that after the fields were sprayed with pesticides, her eyes would swell, her head would ache and her allergies would flare up.

“I kept wishing they would get rid of this nasty dust that harms people,” Maria Garcia said in Spanish.

The six parents who filed the original complaint against the Department of Pesticide Regulation knew that pesticide exposure was to be expected in farming communities like theirs throughout California. They feared, however, that their children were getting unsafe doses simply by showing up at school. Three of the schools were in Pajaro and Salinas in Monterey County. Another was in Watsonville in Santa Cruz County. Two — including Rio Mesa High, which Maria Garcia’s son, David, attended — were in Oxnard in Ventura County.

Rio Mesa is surrounded by strawberry fields. Modular classrooms sit next to a paved driveway on the eastern side of campus. Just past a “Welcome to Rio Mesa High School” sign and a chain link fence, the land dips, and the road transitions to a dirt berm, a carpet of strawberry plant rows sitting a few feet away.

Garcia’s children would sometimes come home from school complaining of headaches. She wondered if the headaches had been triggered by pesticides.

 “I would look at [David’s] head and I would see that there were bumps,” she said. “And I felt that they were almost like little horns growing out of his head. I think poison must have fallen on [him].”

The complaint Garcia and the other parents filed with the EPA against the Department of Pesticide Regulation in 1999 zeroed in on the department’s annual re-licensing of methyl bromide, a fumigant linked to lung and kidney damage as well as neurological effects such as headaches, numbness or paralysis in severe cases.

“Children may be especially vulnerable to pesticides because of both greater exposure to pesticides and greater physiological susceptibility,” the complaint read.

While more research is needed into long-term effects, chemicals used in some pesticides are “not good for children’s lungs,” said Dr. Chris Landon, a pediatric pulmonologist and director of pediatrics at Ventura County Medical Center. “It's so multifactorial — it's hard to pin down to just one thing.”

The business of agriculture

Agriculture is a $2 billion industry in Ventura County. Farmers produce berries, lemons, celery, tomatoes, avocados, peppers and oranges. A persistent ocean breeze keeps the area up the coast from Los Angeles temperate and close to perfect for farming year-round. Strawberries cover about 14,000 acres in the county and are its most famous crop; Oxnard hosts a Strawberry Festival each May.

“If people want to preserve agriculture, there’s always going to be some risks associated with that,” said Oxnard Mayor Tim Flynn. “It’s important that we always achieve that balance and we do whatever it takes to help farmers stay in business on one hand, and on the other hand, protect the health and safety of the residents.”

The fields outside of Rio Mesa High are seas of green with deep brown crevices cutting walking paths from end to end. The berries themselves sit less than a foot off the ground, resting on mounds of dirt covered in plastic to keep water from evaporating in the sun. The air is thick with the fruity smell.

Twelve percent of residents in Oxnard worked in agriculture in 2013, meaning locals are more likely to live, work and go to school near fields treated with pesticides than people in other communities.

Growing up in La Colonia, Mario Quintana, chair of the City Community Relations Commission, which advises the city on issues of race and discrimination, remembers being surrounded by fields and watching pesticides being sprayed on his neighborhood. It was just part of life in Oxnard, he said.

“We could see them coming down and…to us, it was like, ‘Wow, that’s cool,’” Quintana said. “But now, as an adult, (I can see) that was actually pretty dangerous….We were surrounded by it and we were never told that there were any dangers growing up.”

The Angelita C. complainants said they’d detected a discriminatory pattern in pesticide application: The more minority students a school had, the greater the amount of chemicals used within a mile and a half of it. Nearly three-quarters of Oxnard identified as Hispanic in the 2013 census. During the 2013-2014 academic year, only 18 percent of the 2,129 students enrolled at Rio Mesa High School were white.

The racial component adds to the complexity of evaluating discrimination in pesticide exposure, said Ben Todd, a history teacher at Rio Mesa High School.

“I think people want to dismiss these issues as very, very simple, but if you look at a lot of these issues throughout California and throughout the United States, you see, where are prisons being built? Where are hazardous materials being disposed of? Where are, in this case, pesticides and fumigants used? Where is that? It consistently affects communities of color."

Many in Oxnard can trace their roots to the bracero program, which brought Mexican immigrants to the region for temporary agricultural work between 1942 and 1964. While all the city’s residents may be exposed to pesticides, Todd said, some Latinos may have heavier cumulative exposures through their work in the fields or the location of their homes.

Methyl bromide and other fumigants in its class are applied at the beginning of the growing season. The odorless, colorless gas is injected into the soil, which is then covered by a tarp while the chemical penetrates the soil.

The substance was deemed so dangerous to the environment that it became subject to a treaty called the Montreal Protocol, which required all United Nations member countries, including the United States, China and members of the now European Union, to stop using chemicals that damaged the earth’s protective ozone layer. The United States agreed to phase out methyl bromide by 2005 — with uses on a few crops, including strawberries, exempted through 2015.

Growers are constantly experimenting with less-toxic alternatives to chemicals such as methyl bromide and try to coordinate with schools when spraying does occur, said Carolyn O’Donnell, a spokeswoman for the California Strawberry Commission, a state agency that represents growers, shippers and processors. 

“People don’t understand just how much strawberry farmers care about what they’re doing in their fields and about the surrounding community,” O’Donnell said.

Those who have complained about the spraying, she said, “maybe don’t have all of the information.”

Last year, the Center for Investigative Reporting found that farmers were using excessive amounts of fumigants, including one called 1,3-Dichloropropene (1,3-D), in place of methyl bromide as it was phased out. The Department of Pesticide Regulation puts limits on the amounts of certain pesticides growers can use in a given year. But if growers didn’t use all of their allotment one year, the remaining amount would roll over and be added to the next year’s total.

The practice unsettled school officials and the Ventura County Board of Supervisors. The board has ordered the county agriculture commissioner to closely monitor air test results and report his findings. Supervisor John Zaragoza, who represents Oxnard, said he also wants school districts and parents to be notified when and how much pesticides will be sprayed.

The Department of Pesticide Regulation allows county agriculture commissioners to set local rules for pesticide use on top of state regulations. The department announced in April that it was considering adopting some of those more stringent local rules, on a statewide basis; its goal is to have the rules in effect by 2017. The department is “constantly reevaluating pesticide use,” spokeswoman Charlotte Fadipe said, noting that the Angelita C. complaint was unrelated to the effort.

“Our rules prevent exposure for any child or adult of any race,” Fadipe said. “It’s our job to protect anybody and everybody from pesticides, but still allow them to be used for the beneficial things they do.”

Decade-long inquiry

It took a decade for the EPA to complete its investigation of the Angelita C. complaint.

There were peaks and valleys of activity, according to 247 documents the Center on Race, Poverty and the Environment received under a Freedom of Information Act request and provided to the Center for Public Integrity. The cache of documents, a fraction of the entire FOIA release, includes mostly emails between EPA staffers, state pesticide and county agriculture officials between 2001 and 2015.

The case began in promising fashion.

An investigator with the EPA’s Office of Civil Rights reached out to the complainants’ lawyers in January 2002. That year was filled with conference calls and background briefings. The investigator visited California in September and met with state pesticide regulators, the agriculture commissioner and the complainant’s lawyers. He made plans to witness fumigation firsthand.

After the visit, correspondence dropped to a trickle. In January 2003, Monterey County Agricultural Commissioner Eric Lauritzen reached out to the EPA investigator for an update.

“Quite some time has passed since you visited Monterey County last September and I was wondering how your investigation is going,” Lauritzen wrote in an email. “I am curious if there is anything else that we might be able to provide you that would be helpful in your review of the issues pertaining to this case.”

The next two years saw sporadic conference calls. Consultants’ reports discussing the toxicity of methyl bromide and the best locations for air monitors were shared via email. Talking points show that the EPA was creating a computer model to see how pesticide exposure near schools measured up across the state. In October 2006 — a year after the phase-out of methyl bromide was completed under the Montreal Protocol — the EPA was still editing its written analysis of the Angelita C. case, emails show. In June 2009, nine years, 11 months and 8 days after Angelita C. was filed, the complainants’ lead attorney, Luke Cole, died in a car crash in Uganda.

“He never saw the end of Angelita C.,” said Brent Newell, legal director for the Center on Race, Poverty and the Environment, one of three agencies that filed the complaint. “And I think he would…have really just been disgusted with what happened with Angelita C.

It would be two more years before the case was settled.

In April 2011, the EPA sent a letter to Chris Reardon, then acting director of the Department of Pesticide Regulation, asking for a meeting to discuss a preliminary finding of discrimination.

 “OCR would like to conduct these discussions confidentially and hopes that CDPR will also view them in the same way,” Rafael DeLeon, who headed the office at the time, wrote in an April 22, 2011, letter.

Spokeswoman Fadipe said the department felt blindsided by the determination.

“We felt we got the short end of the stick with that,” she said. “We did agree to settle because it was more expedient than fighting over a pesticide which was in decline. We don’t believe we discriminated against Latino children in California, period.”

The complainants weren’t notified of the EPA’s discrimination finding until the settlement with the state was announced in August 2011. The Department of Pesticide Regulation agreed to monitor the air in Watsonville to ensure that methyl bromide was not being used excessively near Latino schoolchildren. The results, the EPA said, would be shared with the community. The department also was required to do additional outreach efforts near schools in areas of high methyl bromide use.

 Newell, who got the news in a phone call as he boarded a plane to speak at an EPA environmental justice conference in Detroit, was livid.

“One of the fundamental tenets of environmental justice is that affected communities should be at the table,” he said. “And they should have an opportunity to participate. And EPA preaches that. I mean, EPA didn't even give them a chance to be at the table.”

The complainants spent eight months trying, without success, to get EPA to reopen the settlement negotiations.

Secrecy aside, Newell said the settlement failed to address the key issues in the complaint.

By 2011, methyl bromide already was being replaced by methyl iodide, a fumigant that would quickly fall out of favor. While the chemical didn’t deplete the ozone layer, it was believed to cause cancer, brain damage and miscarriages, and to contaminate groundwater. Then, growers turned to 1,3-D, a probable carcinogen, to fill the gap.

The settlement agreement didn’t take into account the chemicals that would spring up to replace methyl bromide. In fact, it focused only on the use of methyl bromide between 1995 and 2001 — the years leading up to when the case was filed, and later accepted for investigation. The EPA said at the time that it looked at methyl bromide because the chemical was specifically mentioned in the complaint.

Newell called it a dereliction of duty.

“I still do not know why EPA did not include the fumigants that were replacing methyl bromide,” he said. “They know about the Montreal Protocol. They administer the Montreal Protocol. They know what the pattern of use had to be. Now, if they didn’t do it because they’re incompetent, that’s a problem. If they knew about it and they decided to deliberately restrict their investigation to only methyl bromide, then that’s an even bigger problem. They would be ignoring evidence that’s material to the investigation.”

‘I felt ignored’

For Maria Garcia, the EPA’s version of justice came too late to be of any use to her children.

Her son, David, was a 14-year-old student at Rio Mesa High School when she joined the Angelita C. complaint. By the time the decision came down in 2011, David was well past graduation and starting a life of his own.

“I felt ignored and that they hadn’t respected anything,” Garcia said of the EPA. “I thought that by speaking with lawyers, I would be able to find help [and] …make things better.”

David Garcia, now 30, works as a welder on an oil platform in the Pacific. Based on where he lives now, his children, ages 1 and 3, would attend Rio Mesa, and, potentially, be exposed to the same risks he was.

On August 23, 2013, Garcia, her son and her daughter, Angelica, became the named plaintiffs in a lawsuit against EPA for its “arbitrary” and “capricious” settlement of the Angelita C. complaint. The investigation didn’t look into health effects suffered by schoolchildren exposed to pesticides, the lawsuit alleged, and the settlement didn’t do enough to protect them from future harm. It called for the settlement to be invalidated and a new investigation completed into the case.

The settlement agreement “allows CDPR to continue to discriminate against Latino children in California by allowing the hazardous application of methyl bromide and other dangerous pesticides and fumigants near their schools,” the lawsuit claimed.

The EPA has made some changes to its Title VI program in recent years, including clearing a massive backlog and adhering more closely to mandated timelines. A federal judge granted the EPA’s motion to dismiss the Garcia lawsuit in January 2014. The plaintiffs are appealing.

Shuffling through a stack of photographs she’d pulled from her purse, Maria Garcia landed on a snapshot of three children, their arms draped around one another. The two brown-haired girls are smiling at the camera flanking the boy — wearing a cartoon character shirt and a rosary around his neck — as he grins, his gaze captured by something off camera. These are three of Garcia’s 19 grandchildren: Viviana, Brian and Bernadette. Their ages escape her, though they look young enough to be in elementary school. They are the reason she has continued her fight.

 “If we’re quiet, the damage will be to those who are coming,” she said. “And that’s why I like to help my grandchildren, my great grandchildren, and my neighbors, until they hear us. That’s why I haven’t withdrawn.”

Workers pick strawberries in the fields next to Rio Mesa High School in Oxnard, California.Talia Bufordhttp://www.publicintegrity.org/authors/talia-bufordhttp://www.publicintegrity.org/2015/08/11/17714/california-unsatisfying-settlement-pesticide-spraying

Civil Rights and the environment plus money in politics

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An environmental front in Civil Rights

Jim Morris and his team on the environment beat have delivered an epic package on the failure of the Environmental Protection Agency to fulfill its mission to defend civil rights and combat “environmental racism”. It’s a powerful indictment on the state of enforcement at the agency and the plight of people — generally poor and frequently of color — who find themselves facing disasters on their doorsteps.

The package has several installments to come next week. I’d particularly call out two excellent first person pieces in this first week, one by Kristen Lombardion a site near Selma which typifies the failure of the civil rights protection and another today by Talia Buford on the plight of residents near a proposed hazardous waste site in New Mexico. The data visualization which illustrates the legacy of neglect with hard data is a master of its type by Talia and our news app developer Yue Qiu.

It’s for this kind of work that Jim and the team were awarded a Society of Environmental Journalists prize this week. It was specifically for the Big Oil, Bad Air, package on the environmental and health impact of fracking. David Heath won an honorable mention for another series on the EPA. The same Big Oil, Bad Air package also won the Heywood Broun award of distinction from the Newspaper Guild. Apart from the prestige and pride Jim and the Center can take in these awards, we know donors value the recognition.

We also know the importance of distribution and impact for these stories off our sites and on carefully chosen partners. One of the sometimes unsung heroes of our operation is communications manager Bill Gray, who negotiates with our partners. In the Environmental Justice, Denied package the partner is primarily NBC and its BLK channel with pieces here, here and here. The video is powerful.

Playing in politics, holding health to account and frontline journalism

How we play in the tidal wave of the news around politics is a tough call for an investigative operation and I believe the News & Politics team repeatedly calls it right: jumping on trends and big events to get our brand and voice out there in ways that fit with our approach. A great example this week was Carrie LevineBen Wieder and Dave Levinthal jumping on Joe Biden’s contributors, following a flurry of news that Biden was considering jumping into the presidential sweepstakes. The team tracked the overnight GOP debate on Twitter @publici.

Our executive editor Gordon Witkin also calls out Fred Schulte for producing a "readable, blood-boiling story on the Obamacare research center that will spend $3.5 billion on some questionable research". Among the awards: $674,452 to study how docs might create a “zone of openness” with patients. Another $500,000 in federal tax dollars went to the health insurance lobby. The story was reprinted in full by the NPR Shots blog, where it drew almost 100 comments and 182 tweets. The story was also cited by Kaiser Health News and was a featured item in POLITICO’s Morning PULSE, which has an influential audience of opinion and policy leaders.

Gordon also notes long-time Center contributor Jeff Kelly Lowenstein, winner of a big National Press Club Prize last week, for the same story on a crisis in nursing homes is having an ongoing impact with U.S Senators Ron Wyden of Oregon and Bob Casey of Pennsylvania calling for a Government Accountability Office inquiry.

Julia Harte on Jeff Smith’s National Security team has had an incredible run of investigative and observational journalism. One, which required her to jump on a news event, was this piece based on an interview in Turkey with a Syrian fighter being trained by the U.S but who was recently abducted by ISIS. Julia had interviewed him as part of more investigative work like this and this.

Also in National Security, Alexander Cohen broke down documents to expose more defense industry money flowing in to Washington.

Sticking with the story

At the International Consortium of Investigative Journalists I want to mention the tireless work of Sasha Chavkin on two long-term stories. One was a recent update on a story he led for the ICIJ nearly four years ago about mysterious deaths among cane workers right across the tropics. He highlighted Costa Rica acting on it. Sasha has also led important recent work on exposing the failure of the World Bank to live up to its do no harm policy. Respected British medical journal The Lancet called out the ICIJ’s work on a recent profile of the World Bank President Jim Kim.

What we’re reading

Hamish Boland Rudder noted some love for the ICIJ and its work on tax avoidance by Nobel laureate Joseph Stiglitz.
Also from The Guardian this defense of investigative journalism from two German journalists who had been accused of treason was quite powerful. 
On the media industry, this piece from the sensible Ken Doctor about the revived Washington Post under Jeff Bezos encroaching on the New York Times was a good read.
At home, I’m reading American historian HW Brands on FDR, “A Traitor to His Class”.

Regards

Peter

View looking east from the summit of Arrowhead Landfill in Uniontown, Alabama. This image is composited from several frames.Peter Balehttp://www.publicintegrity.org/authors/peter-balehttp://www.publicintegrity.org/2015/08/11/17814/civil-rights-and-environment-plus-money-politics

Medicare Advantage plans padded charges on home visits, whistleblower says

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A new whistleblower case accuses a Texas medical consulting firm and more than two dozen health plans for the elderly of ripping off Medicare by conducting in-home patient exams that allegedly overstated how much the plans should be paid.

The Texas litigation is just the latest of at least a half dozen whistleblower cases that have been filed in the past five years alleging billing fraud and lax government oversight of privately-run Medicare Advantage plans that have proven increasingly popular with senior citizens.    

The latest lawsuit was filed in federal court in Dallas by Becky Ramsey-Ledesma, a medical billing coder, against her former employer, CenseoHealth, LLC. The Dallas-based firm has contracted with  thousands of doctors who visit elderly people in their homes and evaluate their health on behalf of Medicare Advantage plans.

But the health assessments exaggerated how ill patients were, which in turn inflated Medicare payments to the health plans, according to the allegations in the suit. The suit names 30 Medicare Advantage plans in 15 states, including several Blue Cross plans and other industry stalwarts, such as Humana Inc. Humana has more than three million Medicare members.

The private insurance plans offer seniors an alternative to standard Medicare, which pays doctors for each service they render. Medicare Advantage plans receive a set fee monthly for each patient based on a risk score that pays higher rates for sicker people and less for those in good health. Medicare essentially trusts health plans to report these risk scores accurately. The Medicare Advantage plans have grown rapidly in recent years, and now cover almost 17 million people.

The Texas suit was filed last year, but stayed under court seal until mid-June. It is the second whistleblower action to target Medicare Advantage home visits, which account for billions of dollars in annual revenues for health plans.

A 2014 Center for Public Integrity investigation found that home visits skyrocketed as federal officials struggled to prevent health plans from overcharging Medicare by tens of billions of dollars every year. Federal officials as early as 2013 were concerned the home visits could be a factor in jacking up risk scores improperly and wasting tax dollars. But they backed off a proposal to limit their use when the industry objected, the investigation found.

CenseoHealth’s home visits collect data on the health status of patients, which the private health plans then use to bill Medicare. The company had no comment on the lawsuit.

The Centers for Medicare and Medicaid Services press office declined to answer written questions seeking comment on its home visit policy. The agency instead issued a statement that said the home exams can have “significant value.” That opinion is shared by the health insurance industry trade group, America’s Health Insurance Plans. A spokesperson for AHIP called the visits “an important component of disease management activities.”

Medicare Advantage is enjoying robust growth and firm political support in Congress. The industry has beaten back several attempts by the Obama administration to cut its rates as enrollment has grown to encompass about one in three people on Medicare. In June, the House passed a bill sponsored by Rep. Vern Buchanan, R-Florida,  that appears to prevent federal officials from halting the home health assessments.

At the same time, the Centers for Medicare and Medicaid Services is drawing scrutiny over top manager Andy Slavitt’s former ties to UnitedHealth Group, which runs the nation’s biggest Medicare Advantage plan. Senate Finance Chairman Orrin Hatch criticized Slavitt’s “conflicted history” in a statement issued after President Obama nominated him for the top CMS job in July.

Bringing Back House Calls

CenseoHealth has emerged as a leader in a growing market for in-home health assessments.

Formed in 2009 by two Texans, CenseoHealth grew from four employees to 325 workers by 2013, according to its website. It has built a network of nearly 5,000 doctors whom it says are “uniquely qualified to identify and diagnose health conditions.” CenseoHealth-affiliated doctors have done more than a million home visits, and in 2013 forecast revenue would reach $120 million, according to its website.

CenseoHealth’s investors include private equity firm Health Evolution Partners, headed by David Brailer, a physician and former health information technology czar under President George W. Bush. In March, Brailer was named chairman of CenseoHealth’s board of directors. Brailer could not be reached for comment.

According to the suit, CenseoHealth used an algorithm to identify patients who might have undetected medical conditions that could raise their risk scores. The company uses marketers to contact patients and schedule doctor visits to their homes.

The suit alleges that the doctors don’t provide any medical treatment. Other than taking vital signs and weight, listening to heart and lungs and checking reflexes, no physical exam in involved and no lab tests are performed, according to the suit. The doctors ask the patient a series of questions on a checklist during the visit, which takes about an hour.

“In other words, the conditions reflected on the evaluation forms are not medical diagnoses derived from a medical examination, but instead, are self-reported conditions captured from the medical history and verbally confirmed” by the patient, according to the suit.

Some of the doctors lacked medical licenses, according to the suit, and others were assigned as many as ten visits a day for a flat fee of $100 each. Some faked results, according to the suit. The suit cited a test for Alzheimer’s disease in which each patient was asked to draw hands on a clock to indicate the correct time of day. “In some cases it was obvious that the same person had drawn the clock on multiple forms,” according to the suit.

Some of the diagnoses could not be made reliably through a home visit, according to the suit. Others were based on medications patients took, even when those medications could be taken for more than one condition, according to the suit.

These practices inflated risk scores, according to the suit, triggering “substantial overpayments” to the health plans.

Ramsey-Ledesma claims she was fired in August 2013, the day after she objected to the practices. According to the suit, her manager told her, “we can no longer trust you.”

The other whistleblower case that targeted home visits was unsealed in 2014. It was filed by Anita Silingo, a former compliance officer for Mobile Medical Examination Services, Inc., or MedXM.  The company, based in Santa Ana, Ca., has denied the allegations. The case is pending.

The Department of Justice declined to join either case, which may make it more difficult for the whistleblowers to proceed with their cases and collect a large award. However, lawyers who handle these cases say more of them are moving ahead without the government.

Other whistleblower cases involving Medicare Advantage have been filed in the past five years in California, Florida and South Carolina, among other locales. These cases also allege that Medicare Advantage plans inflated risk scores and as a result were overpaid by Medicare.

Friends in High Places

As early as 2013, CMS officials said they suspected home visits improperly raise risk scores and waste tax dollars. But as the visits became standard procedure for more and more health plans, CMS lost its appetite for tightening oversight.

CMS officials wrote in February 2013 that they were concerned that the primary objective of the visits was to raise risk scores and revenues “without follow up care or treatment being provided.”

In April 2013 though, officials bowed to industry pressure and backed off their proposal to collect data on the home visits with an eye to excluding their use in setting rates.

The following year, CMS again backed down from a proposal to exclude the visits after meeting with the industry. That decision came even though CMS said “there appears to be little evidence” that the visits led to any improvement in patient care. The insurance industry estimated that cutting out the visits would have cost Medicare Advantage plans nearly $3 billion a year.

Earlier this year, CMS handed the industry a major victory and ruled out excluding the home visits. Instead, CMS urged the industry to adopt a set of “best practices” for the visits. The new policy “enhances the value of in-home assessments so they are used to support care planning and care coordination and improve enrollee health outcomes.”

The press release quoted then-CMS deputy administrator Slavitt saying the proposals “would reward providers of high quality, consumer-friendly care” for Medicare Advantage.

Slavitt is a former executive of  Optum, a subsidiary of UnitedHealth Group. In July, President Obama nominated him to take over CMS permanently.

CMS officials declined to answer questions about Slavitt’s role in the decision making process for home assessments, but said:

 “CMS believes that in-home assessments can have significant value as care planning and care coordination tools. In the home setting, the provider has access to more information than is available in a clinical setting.” 

CenseoHealth, LLC contracts with doctors to visit elderly patients in their homes. The evaluations help determine payments to Medicare Advantage plans.Fred Schultehttp://www.publicintegrity.org/authors/fred-schultehttp://www.publicintegrity.org/2015/08/12/17815/medicare-advantage-plans-padded-charges-home-visits-whistleblower-says

Ohioans to vote on marijuana legalization in November

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A controversial measure to legalize marijuana in Ohio will go before voters this fall.

Ohio’s elections chief on Wednesday confirmed the measure would make the Nov. 3 ballot, approving the signatures the pro-legalization group collected in a 10-day make-up period after many of the first 695,000 signatures were found to be invalid.

The initiative would change Ohio’s constitution to legalize medicinal and recreational marijuana use and also give the exclusive right to grow and sell wholesale pot to 10 farms, all of which are owned by the ballot measure’s financial backers.

But the measure, which critics say amounts to a “marijuana oligopoly,” won’t be alone on the ballot. Opponents in the Ohio legislature sent a competing amendment to voters that would outlaw constitutional changes that benefit limited economic interest groups, like those behind the marijuana proposal.

“Hopefully the people of Ohio will decide to protect the clean constitution,” said state auditor Dave Yost, a critic of the marijuana measure. “The door remains open for cannabis legalization by petition by initiative. What we won’t have is this current system that’s poorly thought out and favors a few rich investors.”

Now that the marijuana measure is on the ballot, Responsible Ohio, the group backing it, is expected to start spending a large portion of its $20 million budget to convince Ohioans to vote “yes” in November.

“It's time for marijuana legalization in Ohio, and voters will have the opportunity to make it happen this November — we couldn't be more excited," said Responsible Ohio Executive Director Ian James in a statement. "By reforming marijuana laws in November, we'll provide compassionate care to sick Ohioans, bring money back to our local communities and establish a new industry with limitless economic development opportunities."

The group began running TV ads in Ohio during the Republican presidential debate on Aug. 6. Responsible Ohio is also promoting a new series of videos on its website.

“This amendment will give Ohio a once-in-a-generation opportunity to be the national leader in a multibillion-dollar industry and create new jobs,” one of the videos says.

But Responsible Ohio may not be alone in pushing a marijuana message on Ohio’s airwaves this fall. A coalition of opponents plans to fund ads advocating against the measure, said Elise Spriggs, a Columbus lawyer and spokeswoman for the group. But their fundraising won’t match Responsible Ohio’s millions, she said.

“Whatever we raise it’s never going to be near the same as what the monopoly interests have raised and are raising,” she said.

The Responsible Ohio group is facing another obstacle as well: The Ohio Secretary of State appointed a special investigator to look into what he called a “possible case of election fraud” related to discrepancies in the group’s signatures.

Even if Responsible Ohio’s measure doesn’t pass, the political consultant who came up with the idea for the measure and is running the campaign, Ian James, will rake in cash. His company, The Strategy Network, has already been paid $2.5 million for gathering signatures, according to the most recent campaign filing. James is an extreme example of the network of politicos who profit in the world of direct democracy, an earlier investigation by the Center for Public Integrity found.

But if voters turn down legal pot this year, the Ohio marijuana investors may be back in 2016.

“If something goes wrong the first time, we’ll put up the money the second time,” investor Alan Mooney said.

Liz Essley Whytehttp://www.publicintegrity.org/authors/liz-essley-whytehttp://www.publicintegrity.org/2015/08/12/17821/ohioans-vote-marijuana-legalization-november

'They figured our neighborhood is black, so they'll do it'

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SYRACUSE, New York— Aggie Lane made her neighborhood’s pitch on July 11, 2005. Flanked by eight colleagues from the Partnership for Onondaga Creek, a citizens’ voice for the south side of Syracuse, New York, as well as a half-dozen supporters, Lane pressed the case for civil-rights claims targeting a county government bent on putting a sewage plant in her largely African-American community.

At the U.S. Environmental Protection Agency’s regional office in New York City Lane presented to a table full of civil-rights investigators and lawyers a PowerPoint detailing the Southside community’s struggles: the state highway dissecting the historically black neighborhood; the industrial plants dumping on residents; and now the sewage treatment facility threatening to add to the burden.

“We all know that a white, middle-class community would not put up with a sewer facility in a residential area,” Lane, herself a white, middle-class transplant to Southside Syracuse, said to the regulators.

One year earlier, Lane and fellow members of the Partnership had filed a complaint alleging that the Midland Avenue Regional Treatment Facility — planned by Onondaga County, with state approval — would discriminate against the Southside’s black residents “both because of the siting and the [facility’s] impacts.” Filed under federal civil-rights law, the complaint claimed the plant would harm the “health and overall quality of life of the surrounding community,” as well as adjacent Onondaga Creek.

Partnership members believed the complaint epitomized the fight for environmental justice. To bolster their argument, they noted the county’s proposal for a similar plant on the north side of Syracuse, then predominantly white. That facility used alternative technology much like the Partnership had been advocating to no avail, according to the complaint, making it smaller and less obtrusive than what Southside residents were facing.

“We felt the county was putting something in here because it’s a black area, and the EPA would see right through it,” recalled Joanne Stevens, a lifelong resident of the Southside who became a Partnership member.

The EPA’s Office of Civil Rights disagreed, dismissing the Partnership’s complaint in March 2005 after conducting a six-month investigation without interviewing residents or visiting the Southside area.

Now, at this meeting four months later, EPA investigators said little about the decision. They listened as residents challenged the civil-rights office’s finding that the Midland plant did “not have a significant adverse impact” — questioning its rationale for making such a determination and criticizing an inquiry that relied on county records. EPA officials offered a small concession that would give residents hope for their cause:

“If we receive new significant information,” one investigator told the group, according to Partnership meeting minutes, “we may investigate.”

“They thought that would be the end of it, but they didn’t know us,” Lane said, alluding to the 650-page addendum the Partnership filed a year later to supplement its case. She remembers mailing it, certified, and following up with a phone call — never to hear from the EPA again.

The brush-off was not unusual. As an investigation by the Center for Public Integrity has shown, the EPA’s civil-rights office — assigned to enforce Title VI of the Civil Rights Act of 1964 and assess environmental-discrimination claims filed by communities of color — almost always closes cases without action. Among the minority of Title VI complaints sparking investigation — 64 such cases over 17 years, including Southside Syracuse — records suggest the office has failed to fulfill its mission of rooting out discriminatory acts at agencies receiving EPA financial assistance.

Regulators have rarely closed an investigation with official action on behalf of minority communities. By the time the Partnership meeting occurred — 12 years after the EPA accepted its first civil-rights claim, in 1993 — the agency had resolved five cases, all without findings of Title VI violations, and through a mediation process not involving the complainants. In the decade since, the agency has settled an additional seven.

Alma Lowry, an environmental lawyer and former director of Syracuse University’s public-interest law firm, which represented Southside residents, said EPA’s civil-rights record has sent a clear message to citizens: “There’s no gavel behind [Title VI].” She once worked at the Detroit law firm that has logged some of the earliest Title VI complaints with the agency; one complaint, filed on behalf of a Flint, Michigan, neighborhood, has remained open, pending investigation, for 16 years. Last month, the Flint community joined four others in a lawsuit challenging the EPA for what it called a “pattern and practice of unreasonable delay . . .” in investigating their civil-rights claims. “The agency hasn’t been able to take off its environmental hat and put on its civil-rights hat,” Lowry said, explaining why she believes the EPA has never once found a formal Title VI violation in 22 years.

EPA officials declined to discuss details of specific cases, including Syracuse. The director of the agency’s civil-rights office, Velveta Golightly-Howell, has promised to make a “full-blown effort” to improve the handling of Title VI complaints. “Our goal is really to provide relief for the complainants who have brought their issues and concerns to [the office],” she said.

The quest for justice in Southside Syracuse, however, tells a larger story of how people in some of the most disadvantaged communities can put forward a strong civil-rights case — replete with letter-writing campaigns, extensive research and what residents considered “smoking gun” documentation suggesting environmental racism — yet see little meaningful response from those enforcing the very law meant to protect them.

To this day, Lowry ranks Southside as “one of the most organized, effective and politically aggressive communities I’ve ever worked with.” Yet it lost its battle against the Midland Avenue sewage plant, a source of bitterness for residents still. Those who fought the hardest cannot help but pin blame on the EPA.    

“If that kind of community can’t make Title VI work for them,” Lowry said, “I don’t know who could.”

A forgotten neighborhood

Southside Syracuse, in Onondaga County, is like many other inner-city neighborhoods across the United States: pockmarked by crime and poverty. Bars and liquor stores dominate street corners, where drug deals can burst into the open. Residents hear gunfire while lying in bed at night. New and refurbished houses stand like beacons on city blocks. Most houses are in varying states of disrepair — dilapidated, boarded-up or abandoned. In some pockets, foundations and empty lots are all that remain.

Residents remember the Southside in better days, with its luscious street trees and regal Gothic buildings. For the longest time, those who live here — 84 percent of whom are African- American, and earning an average per capita income of $8,516 — have viewed the neighborhood as the “ghetto,” forgotten by white, wealthy Syracuse.

“Officials never invested money into this slum,” explained Elmore Davis, who, in 1998, moved to the Southside with her two daughters, lured by the promise of a house for $500 down.

Against this backdrop of decay, the county’s sewage plant does not seem terribly threatening. Situated on a bank of Onondaga Creek, near a dairy, a laundry, a canning factory and a bus terminal, the Midland Avenue Regional Treatment Facility looks like any other industrial building. At 24,000 square feet, the aboveground structure rivals the public-housing apartments dotting the area’s residential streets. It sits 250 feet away from the closest home, surrounded by open space where the county has planted trees and shrubs, a testament to the community’s activism.

Inside the facility, two “vortex swirl concentrators” act like giant toilets and flush sewer water down a pipe to a municipal treatment facility approximately five miles away. Underground, a 2.5-million-gallon tank stores storm water. As wastewater builds up, the “swirlers” disinfect the flow with chlorine and dump it into the creek. There are no stacks or vats spewing chemicals into the air. Many newer residents have no idea the plant was built to clean up a creek once so full of raw sewage that the stench wafted across intersections and seeped into homes.

For much of the last century, Syracuse’s civic leaders have used the creek as a sewage channel. In the early 1900s, they designed a sewer system collecting sewage and storm water, and featuring up to 90 overflow points where waste could discharge into waterways during rain events. One such waterway is Onondaga Creek, which feeds a lake sharing its name. By the 1980s, untreated sewage had dirtied the creek, drying on its banks before funneling into Onondaga Lake, then among the nation’s most polluted.

Targeting lake polluters, a local environmental group sued Onondaga County in 1988 under clean-water laws, alleging its “combined sewage overflows” violated safety standards. The New York State Department of Environmental Conservation joined the lawsuit, aiming to force a clean-up of Onondaga Creek.

As far back as 1979, county officials had drafted such a plan. The compliance program relied on swirlers to catch solid waste and chlorinate wastewater. It hinged on sewage plant “storage units,” designed to treat flow on rain-drenched days. Officials proposed constructing four of these units, each above ground, and processing millions of gallons of wastewater a year. Even then, the county’s plan included the Midland plant.

It took another two decades and a federal-court order before Onondaga County would implement its plan. In 1998, the clean-water litigation yielded a settlement requiring county officials to eliminate creek pollution. The county was to capture 85 percent of the average annual precipitation gushing into the combined sewers to reduce overflows. The settlement also dictated specific projects to be undertaken throughout Syracuse, including the Midland plant.

The judgment identified that plant as the first to be built — and the biggest. It would consume an entire city block and rival the size of a football field. A mile-long, 12-foot-diameter storage pipe would feed the plant.

Within months, the county’s proposal was circulating among Southside residents who, by then, harbored a deep sense of mistrust. Over the years, government officials had built multiple urban-renewal projects in the neighborhood, evicting residents and razing homes. Industry crept further into the area, too; today, seven minor industrial facilities operate within four blocks, all formerly residential.

That county officials would site yet another project — and especially a sewage plant, which, in the words of Southside resident Lionel Logan, “was a negative connotation” — in the same community sent a clear message to residents.

“They figured our neighborhood is black, so they’ll do it,” said Louise Poindexter, who has lived on the Southside for 20 years. She and other residents voiced their objections to the Midland plant at a series of public hearings in 1999. They criticized the proposal for displacing citizens and permitting the release of chlorine into the creek. By 2000, residents had formed the Partnership for Onondaga Creek and were organizing neighbors and lobbying politicians.

They demanded alternative locations for the plant but, as the Partnership’s Stevens put it, “That seemed like trying to stop a freight train.” They next pressed for technologies they believed would reduce the facility’s presence in their neighborhood. For them, the most appealing was underground storage, which holds sewage overflow in tanks during storms. It did not require chlorine or an aboveground facility. The county could build a park or a playground on top of the tanks, they argued.

City politicians soon took notice. “I thought, ‘Of course, there are other alternatives,’” recalled Joanne Mahoney, the Onondaga County executive, who then served on the Syracuse city council. She remembers meeting with county officials to discuss the options espoused by the Partnership, to no avail.

“If it wasn’t about cost,” Mahoney said, summing up the county position at the time, “it was along the lines of ‘It’ll improve the neighborhood if we put a plant there.’”

County administrators often presented the Midland plant as a kind of fait accompli: The plant, they noted at hearings and in documents, solved a serious environmental problem contributing to neighborhood nuisances. They reminded critics about the court order, and insisted the Midland location made the most technical sense. Officials acknowledged that the plant had negatives but minimized them. Some said that landscaping the grounds was sufficient recompense. “I thought it was kind of patronizing,” said Mahoney, of the county’s responses. She, along with the rest of her city-council colleagues, voted not to sell the county the land it needed for the Midland plant.

Seeing her vote as one cast for environmental justice, she explained: “If combined sewage overflows were . . . running through one of the affluent, white [areas], we wouldn’t say, ‘What’s the cheapest thing to do?’ And we’d never suggest that just putting up a park would make the neighborhood whole again.”

By 2001, Onondaga County had sued the city of Syracuse to acquire that land, prompting a legal mediation between the two administrations and designated “stakeholders,” brokered by the state. Partnership members lobbied state regulators for a seat at the negotiating table as well; when ignored, they showed up at the weekly sessions anyway. Over nine months, they met with government engineers and administrators and kept up their campaign for other options. In the summer of 2002, county officials seemed ready to relent. Regulators even drafted a proposed agreement declaring that “the best solution . . .  incorporates the use of underground storage” — until the county balked.

“The county said, ‘We’re going to court,’” said Joe Heath, general counsel for the six-tribe Onondaga Nation, which opposed the Midland plant and participated in the mediation, referring to a 2003 ruling seizing city land for the facility.

Onondaga County did make some concessions — subtracting one of three swirlers, for instance, and adding the underground tank. Administrators also agreed to buy an extra acre of land to construct only one building. The changes reduced the facility’s footprint by 7,000 square feet, and shifted it away from homes by 160 feet. In documents, county officials presented such plant compromises as “considerabl[e],” and “an effort to accommodate [community] concerns.” For residents, though, the scaled-down version was not enough.

“We said, ‘Put in underground storage,’ but the county couldn’t do that, okay?” said Logan, who, like many Partnership members, left the negotiations feeling dissatisfied.

“My neighborhood still has the sewage plant,” he added. “Sure, it’s smaller . . . but it still exists.”

‘Total disregard’

The Partnership shifted its focus to the EPA’s civil-rights office in 2004, when the group filed its Title VI complaint. While targeting Onondaga County, the complaint also named the state’s Department of Environmental Conservation, which, under the 1998 judgment, had to approve the county’s compliance program. It alleged that the county had violated civil-rights law in 2003 when issuing its final plan for the Midland plant — failing to allow for “adequate, meaningful public participation”; and adopting a design and location with “adverse impacts on a predominantly minority community.”

It was not the first time the civil-rights office had heard about the Midland plant. In 2000, the facility was cited as evidence of an alleged pattern of racial discrimination in a wide-ranging Title VI complaint targeting county and city administrations. Unlike Onondaga County, the city of Syracuse opposed the plant. Yet it “failed to mount an aggressive defense of its Protected Population neighborhood,” the complaint argued, as required by Title VI.

“The Midland plant was a clear example of the total disregard for people who live in those [Southside] neighborhoods,” said Mike Kisselstein, who, as manager of a local bank, penned the earlier complaint. “Technically, it’s discrimination.”

Rather than examine Kisselstein’s claim, the EPA denied it on procedural grounds because, the 2001 rejection letter stated, “it was not filed within 180 days of the alleged discriminatory act.”

Four years later, Southside residents were not about to let the EPA dismiss their case so easily. The Partnership offered a show of political support for its complaint, amassing a folder full of letters from federal legislators, university trustees, tribal members, local politicians, environmental advocates — “anybody who we thought had any clout,” Lane said. Within five months, the EPA accepted the complaint for investigation — in part. Investigators tossed out the first allegation as “untimely,” but not the second.

“The main gist of it, the [civil-rights office] was going to investigate,” said Lane, who, given the previous rejection, considered the partial acceptance a victory. Generally, the EPA can mediate some resolution of a Title VI complaint with the target of the allegations. The Partnership wanted nothing less. In the ensuing months Lowry, the group’s lawyer, wrote multiple letters to federal, state and county officials suggesting as much.

“We wanted EPA to say, ‘Yes, there’s environmental injustice here,” explained Lane, the complaint’s main contact, “and the way you can fix it is to go back to the negotiation table.”

Onondaga County disputed the allegation, calling the complaint “jurisdictionally and procedurally defective,” and arguing the plant would have little, if any, adverse impact. Responding to the citizens’ complaint, county attorneys contended that the EPA had already addressed the core issues. They pointed to an environmental assessment of the Midland plant conducted by the agency’s regional office, in New York City, which funded the $125 million project.

As required by law, EPA regional officials five years earlier had reviewed the Midland plant for potential environmental impacts. In the 1999 assessment, the agency ceded that the facility could cause what it termed “high adverse impact,” albeit “temporary and/or . . . offset by the county’s measures to mitigate.” It agreed with the county that the plant tackled a larger environmental problem, and that the plant location — home to several sewer overflows and trunk lines — meets “requirements for engineering feasibility and cost-effectiveness.” And while the assessment included an environmental-justice analysis, examining a few nearby alternative sites, the agency said any facility would affect a similar population.

Ultimately, the EPA approved the Midland plant, issuing a “finding of no significant impact.” The agency affirmed this conclusion in 2004, stating that “no significant adverse environmental impacts will result from the construction and operation of this project.” That EPA finding, the county asserted in the civil-rights case, “precludes a finding of a Title VI violation.”

For Southside residents, the irony seemed rich. Soon after the EPA released its environmental assessment, the county built 1,000 feet of a plant pipeline, ripping up properties, and disrupting people’s lives. Now as the agency launched its civil-rights investigation, the county kicked off plant construction, seizing 45 townhouses, and evicting residents like Vernell Bentley, who lived in a public-housing unit across the street.

“They told me I had to go but I said, ‘I’m not going,’” recalled Bentley, one of the few to hold out for replacement housing. She remembers when trucks pulled into her dead-end street, leveling picnic tables and a basketball court. “They were boarding up my windows,” she said, “and putting up fences around my home.”

Once a close-knit community, the Southside has not necessarily recovered. After the evictions, Bentley and former neighbors scattered across the city. Many have disappeared since. “It just messed up the neighborhood,” said Bentley, who likens her experience to that of black citizens pushed out by urban-renewal projects in the 1960s and ‘70s.

“‘We don’t care about these Negroes, just put it here,’” she added.

By March 2005, the EPA’s civil-rights office had dismissed the Partnership’s complaint. Relying on the regional office’s 1999 environmental assessment, as well as the county’s paper trail for developing its sewer compliance plan, investigators determined that the Midland plant would not have a “significant adverse impact.” “Therefore,” the 2005 dismissal letter stated, “[the office] does not find a prima facie case of discriminatory effect.”

Some saw a larger pattern in the EPA’s dismissal. For years, its civil-rights office has interpreted compliance with environmental laws as evidence that a target’s actions or decisions would not harm a minority community. Experts note that, unlike Title VI, environmental laws are not designed to protect historically vulnerable populations; on the contrary, they are written for everybody. These laws also examine individual impacts — on the air, or in the water — rather than the cumulative effect, as required by Title VI.

“Compliance with environmental laws was conflated with compliance with Title VI,” said Lowry, who, like many, has viewed such an interpretation as a misreading of civil-rights law. In the Syracuse case, investigators did not evaluate what she described as legitimate resident claims about the county’s final plan — its disruption to the community, for instance, and its dislocation of residents — because of their reliance on an environmental review not intended to account for such consequences in the same way as Title VI.

“With Title VI and the EPA,” she added, “there is something of a disconnect.”

Stunned by what they considered an unfair investigation, the Partnership pushed for a meeting with EPA officials in the summer of 2005, during which they challenged the agency’s dismissal. When they heard the EPA’s concession, members set out to find what they considered “new and significant information.” Over nine months, they filed records requests and combed through documents detailing Onondaga County’s sewer compliance plan. By 2006, they had produced a 150-page addendum, backed by 500 pages of government records, outlining how plan architects had repeatedly made decisions that would burden the Southside over other neighborhoods.

They believed they had uncovered “the smoking gun” in a three-page document written by consulting engineers for county administrators. The 1998 document revealed that Onondaga County had planned to build a “swirl concentrator” just like the Midland plant on the Northside before evaluating alternatives that, the engineering report stated, “will reduce costs and disruption of the site.”

The county could capture the Northside’s sewer overflows by building an “oversize pipeline in both Midland and [nearby downtown],” according to the report, thus sparing the former “disruption.” The county later scratched this area’s sewage plant for a smaller, less intrusive “floatable control facility.”

“It was like, ‘Okay, that’s discrimination,’” said Lane, noting the Northside facility sat near luxury condominiums in a predominantly white area. A retired engineer, she saw the document as an expose of the ways the county was, in her words, “shifting the burden from the Northside, sparing them and placing it onto the Southside, where you can get away with it.”

Given all this work — and all this new information — Partnership members never expected that the EPA would fail to acknowledge their addendum, they say. Now, 10 years after their case’s dismissal, they have learned all about the agency’s lackluster record of adjudicating civil-rights claims. Still, their case has seemed as good as any could get. To them, the agency’s silence has left one lasting impression of its enforcement of civil-rights law:

“We do all the digging. We send them stuff. They don’t talk to us anymore,” said Lane, summing up the community’s Title VI experience. “It makes you cynical after a while. . . . You think, ‘What does any of this really mean?’”

Asked about Syracuse, Golightly-Howell, the EPA’s civil-rights chief, declined to speak about cases that have not “happened on my watch,” beginning in February 2014. In general, she pointed out, “the agency bears the burden of investigating and determining whether a prima facie case [of discrimination] has been established.”

Under her leadership, Golightly-Howell said, the civil-rights office has worked to implement a strategic plan for improving how investigators handle Title VI complaints. As part of this effort, it issued a position paper in May explaining the role of complainants during case investigations.

“We’ve made forward movement in the direction of increasing confidence,” she said.

After the EPA’s dismissal, Southside residents kept up their fight, protesting at every phase the Midland plant’s construction. They eventually benefitted from a shift in Onondaga County’s political landscape in late 2007, when executive Mahoney won her first election. Almost as soon as she had assumed office, Mahoney set out to revise the county’s sewer compliance plan. By then, the Midland plant had already been built, but not its feeder line. She cancelled that pipeline, as well as another proposed sewage plant.  

“It was clearly the right thing to do,” said Mahoney, who has since implemented a plan largely relying on alternative technologies espoused by the Partnership, such as underground storage.

Today, the Midland plant is the rare sewage plant storage unit to actually be built in Syracuse. Mahoney’s sewer compliance plan has enabled her administration to reduce the footprint of every single proposed swirler facility except Midland. Some of those facilities became underground storage tanks, and are now nestled beneath parking lots. Others were never built.

That none of the city’s other neighborhoods have had to endure what they have endured remains a bitter pill to swallow for many on the Southside. “We got the plant,” the Partnership’s Poindexter said. “Nobody else did.”  As residents see it, Southside may be in better shape today than it would be if it no one had spoken up years ago — their sewage plant is smaller, their creek cleaner. But none of these gains came about because the EPA’s civil-rights office did right by the community.

“What did the agency do for us? They didn’t do shit for us,” Poindexter said, echoing the sentiment among many neighbors. “They gave us hope when they knew there was none. That’s how I feel about the whole thing.”

Longtime Southside Syracuse resident Lula Donald.Kristen Lombardihttp://www.publicintegrity.org/authors/kristen-lombardihttp://www.publicintegrity.org/2015/08/13/17759/they-figured-our-neighborhood-black-so-theyll-do-it

Federal Election Commission finally names top lawyer — sort of

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After 767 days without anyone leading its legal department, the Federal Election Commission has a new top lawyer.

Sort of.

Daniel A. Petalas, associate general counsel for enforcement, will serve a 120-day stint as the FEC's acting general counsel following a unanimoius vote by the agency's six commissioners. His temporary appointment is effective Aug. 24.

The decision ends a protracted stalemate among the commissioners — three Republican and three Democratic appointees — who've gone without anyone leading their legal department since former general counsel Tony Herman resigned on July 5, 2013.

The FEC is charged with regulating and enforcing the nation's campaign finance laws.

Chairwoman Ann Ravel, a Democrat, acknowledged being "surprised" that the often ideologically divided commissioners finally reached an agreement to name an acting general counsel.

Why now?

"Daniel has earned the confidence of all the members of the commission for his presentation of legal issues," Ravel said.

In a statement Thursday, FEC Vice Chairman Matthew Petersen, a Republican, called Petalas "a highly skilled lawyer" who is likely to "excel in this capacity.”

Petalas has supervised the FEC's work on potential federal campaign finance violations since 2012. He previously worked 10 years for the U.S. Department of Justice as a trial attorney in its public integrity section.

A vote to appoint Petalas acting general counsel took place Tuesday during a closed-door meeting of the body, not during a public session. 

Ravel said the vote was not conducted publicly because it involved an internal personnel matter.

Commissioners, Ravel said, also agreed Tuesday to actively recruit a permanent general counsel — an effort that had been tabled during most of this year. Both internal and external candidates will be considered, she said.

The FEC will also seek to this year fill two other high-level vacancies in its general counsel office, which oversees enforcement, litigation and policy matters, among its various responsibilities. 

 

 

 

 

The Federal Election Commission is located at 999 E St. in downtown Washington, D.C. — a nondescript building situated across from FBI headquarters and next to a Hard Rock Cafe. Its entrance features a quotation attributed to Supreme Court Justice Louis Brandeis: “Sunlight is said to be the best of disinfectants." But funding and staffing woes, along with political infighting, have rendered it a weakened watchdog. Dave Levinthalhttp://www.publicintegrity.org/authors/dave-levinthalhttp://www.publicintegrity.org/2015/08/13/17837/federal-election-commission-finally-names-top-lawyer-sort

Residents of Ohio town see 'environmental justice' as empty promise

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EAST LIVERPOOL, Ohio– When  President Bill Clinton deemed environmental justice an administration priority 21 years ago, Alonzo Spencer felt an odd sensation: optimism.

The steel-mill crane operator could stand on the grounds of the neighborhood elementary school and see why such protections mattered. Down a valley less than 400 yards from the East Elementary School, hugging the banks of the Ohio River, a hazardous waste incinerator belched smoke, fumes and flares into the air.

Spencer and a core of fellow activists had fought what was then the Waste Technology Industries incinerator ever since it was proposed it in the early 1980s. 

They were still fighting when it opened in 1993. So Spencer was heartened a year later when Clinton decreed that each federal agency “shall make achieving environmental justice part of its mission by identifying and addressing …disproportionately high and adverse human health or environmental effects” on minority and low-income communities.

More than 10 years later, the U.S. Environmental Protection Agency designated a neighborhood near the incinerator a “potential environmental justice area.”

People here took this as a sign that someone would come to their rescue. No one has. Now, many see Clinton’s Executive Order 12898 and the EPA’s environmental-justice designation as little more than an empty promise.

“We fit the designation as an environmental justice community and all that it entails,” said Spencer, president of a group called Save Our County. “But there are conditions that went along with that, and they’ve never been implemented… [We are] still being poisoned by the emissions from the facility, and we’re still suffering.”

An EPA official told the Center for Public Integrity that the environmental justice label doesn’t require the agency to take special action in communities such as East Liverpool. It merely serves as an internal screening tool to help officials identify potentially vulnerable areas.

“I think a lot of times what people are looking for is something that’s just not there,” said Matthew Tejada, enforcement director in the EPA’s Office of Environmental Justice. “I think a lot of times, folks wish that we had an actual [environmental justice] statute on the books that would say ‘If X happens, you do Y,’… and we don’t have that."

The East Liverpool example shows the hollowness of the government’s environmental-justice pledge, said Stephen Lester, science director for the nonprofit Center for Health, Environment and Justice. Spencer serves on the CHEJ board.

“They haven’t received any kind of attention from the agency as a result of that [designation],” Lester said of East Liverpool residents. “The EPA at the time went through that elaborate process. It’s nice they did that, but what did the agency do when it comes to that conclusion? And that’s the question we’ve been asking.”

Save Our County members reached out to the EPA’s widely criticized Office of Civil Rights about a year ago, Spencer said. “We couldn’t get anyone that would help us within the organization,” he said. “The contacts we had wouldn’t answer our phone calls or our letters or our emails.”

In a statement, the EPA said it could neither “confirm nor deny” Spencer’s claim. “We can confirm that, as of today, [the Office of Civil Rights] does not have any pending matter involving East Liverpool, Ohio.”

An executive order, a plea for help

On October 19, 1994, nine months after Clinton issued his executive order and a year after the Waste Technology incinerator started burning hazardous waste, Spencer asked the EPA to designate East Liverpool, with its high cancer rate and dwindling population, an environmental justice community.

Though the city is majority white, residents clustered around the incinerator – now operated by Heritage Thermal Services -- are mostly minority and low-income, Spencer and Terri Swearingen, coordinator of the Tri-State Environmental Council, wrote in their plea to the EPA.

It took 11 years for the EPA to agree. In March 2005, the agency said that East Liverpool qualified for environmental justice protections. Census data had shown the minority and/or low-income population in the East End neighborhood nearest the incinerator was more than twice the average of every state in the EPA’s Region 5.

For residents, the designation was encouraging. They clung to four words spelled out in a report from the Ohio Environmental Protection Agency in 2007: “Fair treatment” and “meaningful involvement.”

In truth a half-dozen activists here say they have yet to see either from the state or federal governments – even as EPA enforcement records show the incinerator is considered a significant violator of the Clean Air Act.

In 2011, the U.S. EPA fined Heritage $50,000 for violating the act. In a statement to the Center, the agency said the violations “may have caused excess emissions of hazardous air pollutants, heavy metals and soot.” An accidental release that dumped ash on homes and cars in the city’s East End neighborhood drew a $10,000 for violation of the federal Resource Conservation and Recovery Act (RCRA), which governs hazardous waste disposal, and a $34,000 fine from the Ohio EPA, both in June.

Spencer said the fines have done no good.

“We’ve written letters to [regulators] involving this facility as a perpetual violator,” he said. “They have a history of violating, and the EPA fines them, slaps them on the wrist and lets them continue to run…”

Heritage spokesman Raymond Wayne wrote in a statement that the emissions that triggered the Clean Air Act penalty “were of short duration, low severity and within the yearly allowable limit that is deemed protective of health and the environment by environmental regulators.”

He said the company “responded immediately” to the ash release and learned from the incident. “We deployed personnel to take samples of the area,” he said. “We set up a ‘1-800’ hotline to field calls from the community that was staffed until the late evening.”

U.S. EPA officials say East Liverpool’s environmental justice designation doesn’t obligate the agency to shut down the incinerator but moves the community’s concerns to the top of the agency’s to-do list.

“[I]t means that folks have more forums in which to raise their issues,” Tejada said. “They have more advocates within the agency and within the government…”

Strange smells, stark colors, melting equipment

Heritage burns hazardous waste generated by industry and government, including reactive materials, household hazardous wastes and controlled substances from the U.S. Drug Enforcement Administration (DEA) and other agencies.

Its incinerator operates in a city whose population has dipped from nearly 14,000 in 1990 to a tick over 11,000 in 2013. EPA data show more than 1,800 of 3,501, or 53 percent, of people within a one-mile radius of Heritage lived below the poverty line in 2010.

The incinerator sits in a floodplain below the town. The tops of its smokestacks are level with nearby homes, some of which are less than a mile away. Unfavorable winds often send trails of smoke over the community.       

“We get downdrafts here more than usual,” said longtime resident Amanda Kiger. “The emissions that go into the air, they come right back down into the houses.”

“When the smoke comes out of that stack, it’s right above our house,” said Sandy Estell, who lives 800 feet away, on the street nearest the plant. “It’s just like an umbrella.”

Today, Ohio law requires a 2,000-foot buffer zone between industry and homes, but that rule came after approval of the East Liverpool incinerator.

Over the years, residents say, they have encountered foul odors and bright colors emanating from the plant’s stacks. Estell recalls an odor one day that reeked of cat urine.

“A purple plume has come out of that stack several times. Purple as this,” said East Liverpool resident Virgil Reynolds, pointing to the purple sweater Estell wore that afternoon.

Heritage officials attribute the bright colors to the burning of iodine in its cleaning water, which the EPA said poses no health risks.

The EPA’s Toxics Release Inventory (TRI) shows that Heritage put more than 3,000 pounds of chemicals into the air in 2013, including lead, manganese, barium and benzene. The incinerator’s total emissions, however, have decreased nearly every year since 2005.

In 2010, under pressure from Heritage critics, the East Liverpool Board of Education accepted a bid to demolish East Elementary School, which sat less than 400 yards from the facility. The board cited the city’s shrinking population and the proximity to the incinerator as factors in the closing.

In 2011, a flash fire at the incinerator killed one worker and sent another to the hospital with severe burns. The U.S. Department of Labor’s Occupational Safety and Health Administration proposed fines against Heritage totaling $126,000 for nine alleged violations in connection with the incident. One of the violations was classified as “willful,” meaning OSHA believed Heritage showed “knowing or voluntary disregard” for federal law or “plain indifference to worker safety and health.” Under a settlement, the willful violation was reclassified as “serious” and Heritage agreed to pay $63,000.

“Following any incident, regardless of the severity, we conduct a rigorous review of what happened and, based on the findings, implement appropriate corrective and preventative measures,” Wayne said.

A year later, several workers said their protective clothing began to “melt and disintegrate” while they were preparing hazardous waste for incineration. Their lawsuit against Heritage was dismissed, but such incidents serve as stark reminders of the proximity between industry and people.

In July 2013, a malfunction sent approximately 761 pounds of ash into nearby neighborhoods during routine incinerator operations, the company said. The city told residents to be sure to wash fruits and vegetables from their gardens before eating them. Spencer said the ash release was so bad that Heritage offered to pay to clean people’s cars and swimming pools.

 “The whole four-block radius around the incinerator was totally covered in ash,” said Kiger, an organizer for the environmental group Communities United for Responsible Energy. “They brought in people in hazmat suits.”

The Ohio Department of Health’s Health Assessment Section found high levels of metals in soil near the incinerator. It said, however, that the trace levels in residential areas were “not expected to harm people’s health.” Lester, of the Center for Health, Environment and Justice, examined the report. The department, he said, ignored its own findings.

“The level of lead was specifically high in certain areas,” Lester said. “These were levels that settled in soil, not what people were breathing. I think people had a high dose…”

Heritage spokesman Wayne said the company made major changes after the ash incident.

“Internally, we convened an extensive incident investigation,” he said. “We identified potential waste streams that contributed to the incident and suspended a number of them.”

Heritage and Ohio EPA officials met in June and agreed on a $34,000 penalty for the ash release. Spencer called the penalty “just another slap on the wrist.”

‘Good neighbor’

Heritage says it is a good neighbor and the allegations raised by Spencer and others have been addressed.

 “All of the issues that have been raised about this facility have been examined in detail,” Wayne said. “There’s absolutely no reason to revisit them again at this point. We are a well-respected member of the community, both the business community and the community in general.”

East Liverpool Mayor Jim Swoger has supported Heritage since the company began awarding grants for local environmental projects in 1998.

Swoger lived in the East End for 45 years, his wife more than 60, and says neither has seen health effects from the incinerator. Both received clean bills of health after Heritage sponsored testing of residents’ hair, fingernails and motor skills, Swoger said.

“I don’t see the effects of the incinerator, today,” he said in a phone interview. “I respect Alonzo more than anybody. The amount of work he’s done on this is amazing… But he’s 87 years old and he’s very healthy. Sandy Estell lives right near Heritage and her son, Ryan, is one of the smartest boys I’ve seen.

“If I thought Heritage was hurting us, I’d be the first to say something. They’d tell you that.”

In March, the U.S. EPA cited nearly 200 instances between 2010 and 2014 in which the incinerator had exceeded its allowable total hydrocarbon (THC) emission rate. Failed safety measures “have caused or can cause excess emissions” of hazardous metals, chemicals and particulate matter into the air, the EPA said.

Heritage spokesman Wayne said the exceedances occurred only .018 percent of the time during that period. He said the company is taking steps to ensure compliance in the future.

Supporters fear Heritage will take the fall for other polluters in the area. The waste incinerator is one of four facilities that discharge hazardous chemicals in East Liverpool and 11 within a 10-mile stretch along the Ohio River. Four of the 11 do not report to the Toxics Release Inventory.

“Bellofram [Corporation] is another industry right up the road,” said Denise Taylor, who heads the Community Resource Center of East Liverpool and used to live blocks away from Heritage. “Sammis [Coal] Plant has been here for years. Mason Color, too… It amazes me that the EPA is so concerned when there are other plants around us.

“Heritage is not the only facility and I don’t think they should be used as a scapegoat.”

EPA data show Heritage accounts for 17 percent of toxic releases in Columbiana County. Mason Color Works accounts for less than one percent. Two other facilities operated by Weavertown Environmental Group and East Liverpool WWTP have air, water and land permits and the potential to release up to 20,000 pounds each of hazardous chemicals into the air, but do not report to the Toxics Release Inventory.

Taylor said Heritage is the only organization that gives back to the community. It donated more than 100 turkeys for the Community Resource Center’s 2014 Thanksgiving Giveaway, and Heritage workers volunteered to repair a community playground that went years without maintenance..

Heritage is the reason the Resource Center is still open, Taylor said.

“They do a lot of things behind the scenes because they don’t want any credit…,” she said.

On Earth Day this year, Heritage donated more than $6,500 to school and community environmental projects. The company has given nearly $74,000 to environmental projects in the past 17 years.

“Companies do that. That’s good PR,” Kiger said. “What’s $6,000?”

Tracy Drake, a Heritage supporter, says activists overlook the positive impact the company has made on the city.

“It’s the largest taxpayer in East Liverpool, they’re a very good neighbor, and they employ more than 170 workers,” said Drake, director of the Columbiana County Port Authority. “It’s had a great effect on the economy. You shut Heritage down, all those people go unemployed.”

Wayne said the company is in the process of adding to its 180 employees at the incinerator.

“We provide opportunity for our community, not only in terms of jobs, but also in terms of taxes and voluntary contributions paid to the city and many civic organizations,” he wrote in a statement.

Still, some residents remain staunchly opposed to Heritage, and have gained no traction in their decades-long quest to shutter it.

Years ago, Spencer wrote to EPA Deputy Administrator Bob Perciasepe, noting how another hazardous waste incinerator in the state, operated by PPG Industries Ohio, faced closure unless it came into strict compliance with EPA emissions standards.

In the letter, he said dioxin stack releases for 2011 showed the East Liverpool incinerator’s to be 10 times that of PPG’s. At the same time, Spencer wrote, PPG was fined six times the amount Heritage was.

“We can’t understand why PPG [can face closure] based on its problems but [Heritage] can continue to operate,” said the CHEJ’s Lester.

New permits, no voice

Strikingly, residents say, the incinerator was recently granted permits to burn hazardous waste from two new sources – one, in 2010 from the DEA, and the other in 2011 from the Bureau of Alcohol, Tobacco, Firearms and Explosives – without the community receiving notice. “One of the provisions is the public would have input into any additional waste coming into this area,” Spencer said. “The public was not afforded an opportunity to comment.”

Wayne said it is up to the respective federal agencies to take public comments on new permits, not Heritage. The Center for Public Integrity filed Freedom of Information Act requests with the DEA and ATF seeking proof that they sought such comments before Heritage received the permit to burn their waste. The FOIA requests also sought information on what materials Heritage is burning.The DEA said it had "no responsive records"; the ATF did not respond.

Save Our County contacted the EPA’s Office of Civil Rights about the new waste streams, Spencer said, but was told it had to fill out lengthy paperwork to get an investigative process started.

“It just sounded like an, ‘Ah, we’re just going to drag this out forever,’ ” he said. “And we’ve been through that before.”

Spencer wrote to then-U.S. Attorney General Eric Holder, calling on the government to honor the environmental-justice designation it bestowed on the community in 2005. “We feel that the issuance of these permits are a clear violation of two provisions of ‘environmental justice’ policy as set forth by the U.S. EPA,” Spencer wrote in October 2013, “to wit ‘FAIR TREATMENT’ and ‘MEANINGFUL INVOLVEMENT.’”

Over the years, citizen protests have included a mock funeral for hazardous waste at the governor’s mansion and sit-ins at the capitol with children. There were demonstrations at the White House and plant headquarters. Spencer said he was handcuffed with actor Martin Sheen after one demonstration, when both were arrested in 1991 after climbing a construction site fence and kneeling in protest at the under-construction incinerator.

Spencer, 87, says he may not see the end of his hometown’s fight for clean air, but he has faith in the next generation of activists.

“We’re not going to give up, period,” he said. “Our group is passing away. We’re passing the torch to the younger group. Some of them are mothers who see those illnesses in their children.”

Spencer hopes their appeals for help, unlike his, are heard.

“All of our fears have come to fruition,” he said. “This is a perfect example of a government agency failing a community.”

A hazardous-waste incinerator now operated by Heritage Thermal Services spews smoke close to homes in East Liverpool, Ohio, in 2003.Kristian Winfieldhttp://www.publicintegrity.org/authors/kristian-winfieldRonnie Greenehttp://www.publicintegrity.org/authors/ronnie-greenehttp://www.publicintegrity.org/2015/08/14/17804/residents-ohio-town-see-environmental-justice-empty-promise

Center punches above its weight in journalism awards

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Punching above our weight

The Center has a history of punching above its weight in the rich field of journalism awards in the United States. Last year’s Pulitzer for the Breathless and Burdened package was of course the pinnacle.

This week the team was struck by a shortlist for the Online News Association with no fewer than seven finalists— more by my count than any other news organization other than The New York Times (with 10). It’s a strong field across the board in many categories with entries from around the world. What is so gratifying — and will hopefully lead to awards —  is the spread across our portfolio from Juvenile Justice to Money & Politics and to the International Consortium of Journalists’ work on two major projects.

It’s a credit to the team to get these kudos from peers and we know donors in particular value the professional recognition. It adds to the ways we measure impact through readership engagement, social media, distribution with media partners and real-world change.

Our ONA finalists include one where we are the sole nomination for the Al Neuharth Innovation in Investigative Journalism Award for small newsrooms, the work on Profiting from Prisoners by our former colleague Dan Wagner, now at BuzzFeed and our video editor Eleanor Bell. It's a powerful piece.

Others include: Susan Ferriss’ work on the incarceration of children which is also credited to RevealNews for its podcast version, the work on the US broadband duopoly by Allan Holmes and Chris Zubak-Skees, Sasha Chavkin’s series on the World Bank’s broken promises for the ICIJ in partnership with Huffington Post and huge SwissLeaks project by the ICIJ.

The shortlist for the ONA awards is here and is filled with our partners and our competitors.

EPA stays quiet under the barrage

The Center’s Environment team piled on more evidence that the Environmental Protection Agency has failed in its duty to protect minority groups from “environmental racism” with example after example from communities as far afield as Oxnard, California, Syracuse, New York, and poignantly, a town near Selma, Alabama – site of a huge hazardous waste dump.

What strikes me about so much of the coverage is the lame response from the EPA itself. It appears to feel no sense of obligation to explain itself. In a partnership with NBC the Center has interviewed the the director of the agency’s civil-rights office, Velveta Golightly-Howell, who says the civil rights requirements are a “priority”. That’s not what the body of evidence suggests and we’re trying the EPA again.

Unfortunately it looks like a good candidate for our communications manager Bill Gray’s Tumblr “couldn’t be reached” for those times when public officials really don’t feel they ought to explain their actions to the media.

Anatomy of an investigation

Bill Buzenberg, my predecessor heading the Center, has been at the Shorenstein Center on Media, Politics and Public Policy at the Harvard Kennedy School. He’s produced an account of what goes into an ICIJ investigation by Gerard Ryle and his team, specifically the SwissLeaks story and the way the consortium was to reveal the secrets of HSBC’s Swiss banking operation. It’s a compelling perspective on the collaborative approach the ICIJ has pioneered over the past few years, bringing hundreds of lone wolves together in a pack.

What we’re reading

The MacArthur Foundation is a mover and shaker in the philanthropic world and a long-time backer of the Center. It’s President, Julia M. Stasch, sets a new direction for the organization in this extract from the MacArthur annual report.

The upheaval at the New Republic magazine has been educational for me and this from the Poynter Institute is illuminating.

And from the “we’re not dead yet” department, Jim Romenesko notes the Cleveland Plain Dealer has realized investigative journalism seems to work online. Meanwhile Recode reports that long-form is shared more than short-form

On a day when it was confirmed NBC Universal’s investing $200m each in Vox and BuzzFeed, this on the BuzzFeed phenomenon from Gawker. 

I welcome any feedback on this note.

Regards

Peter
pbale@publicintegrity.org
@peterbale

Kayleb Moon-Robinson — who is diagnosed as autistic — had barely started sixth grade last fall in Lynchburg, Virginia, when a school resource officer filed charges against him. Kayleb was charged with disorderly conduct for kicking over a trash can and then with felony assault on a police officer because he struggled to break free when the cop grabbed him.Peter Balehttp://www.publicintegrity.org/authors/peter-balehttp://www.publicintegrity.org/2015/08/14/17844/center-punches-above-its-weight-journalism-awards

The marijuana legalization movement begins in the states

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This project was produced by News21, a national investigative reporting project involving top college journalism students across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

WASHINGTON, D.C. – Advocacy groups have poured millions of dollars into legalizing both recreational and medical marijuana in states across the country.

One of the most powerful and influential groups – Washington, D.C.-based Marijuana Policy Project – was behind successful recreational measures in Alaska and Colorado, two of four states that now allow recreational use. MPP organizers hope to replicate those efforts in five other states during the 2016 elections, an undertaking they say will – if successful – prove significant for the effort to end marijuana prohibition.

One of them, Arizona, is a state that conservative icon Barry Goldwater called home. It frequently makes national headlines for controversial measures on immigration and gay rights. Voters passed the state’s medical marijuana program by the barest of margins in 2010.

“Out of the five campaigns that we’re running nationwide, Arizona’s definitely going to be the most heated, the most active,” said Carlos Alfaro, the Arizona political director for the Marijuana Policy Project. He plans to win voters by inundating the airwaves, unveiling billboards, organizing rallies and hosting debates.

It’s all part of the well-funded, well-organized machine that’s driving the effort toward ending prohibition nationwide. Proponents have found so much success because they have learned how to secure financial backing, take advantage of changing attitudes and address fears about legalization. The Marijuana Policy Project aims to add California, Nevada, Massachusetts and Maine to its portfolio of ballot initiative successes in 2016, along with Arizona.

Legalization efforts – many backed by other groups – could appear on the ballot in about a dozen states next year. Twenty-three states and Washington, D.C., already allow for medical marijuana use. Four states – Washington and Oregon, in addition to Colorado and Alaska – and the District of Columbia allow adults to smoke pot recreationally.

In Congress, lawmakers have started to take positions on pot and more have supported state medical marijuana laws. Both Democratic and Republican presidential candidates are talking about how they would deal with marijuana if elected. Sen. Rand Paul, R-Ky., has even courted the legal marijuana industry for campaign donations.

Leaders in the pro-legalization movement said the question is no longer whether the federal government will treat marijuana like alcohol – but when. They say the question is no longer whether the states will legalize, regulate and tax marijuana sales – but how.

“I think we’re past the tipping point,” said Keith Stroup, the founder of the National Organization for the Reform of Marijuana Laws, another major player in the pro-legalization effort. “There are all kinds of signs that people have figured out that prohibition is coming to an end. They may not be thrilled about it, they may not be a cheerleader for it, but when they recognize that, they begin to say, ‘OK, if we’re going to legalize marijuana, how do we do it in a responsible manner?’”

But legalization opponents don’t plan to concede any time soon.

“I don't think that legalization is inevitable,” said Alan Shinn, the executive director of the Coalition for a Drug-Free Hawaii. “The pro-marijuana people will say that it's just a matter of time before marijuana is legalized. I think there's other alternatives to legalization. We should really be taking a public health approach to this, especially with our youth.”

And that’s still a sticking point. The federal government classifies marijuana as one of the most dangerous drugs, “with no currently accepted medical use and a high potential for abuse,” according to the Drug Enforcement Administration.

The disparity between states that have liberalized their marijuana laws and the decades-old federal prohibition of its sale and use has caused confusion in law enforcement and tension in the business world. Pro-legalization groups said that’s their ultimate goal: Put so much pressure on the federal government by legalizing state by state that they can finally end the discrepancy.

“I actually consider 2016 to be what I call the game-over year because there’s a good chance that a bunch of states will legalize marijuana,” said Bill Piper, the director of the Drug Policy Alliance’s office of national affairs. “We’re reaching the point where the federal government is going to have no other choice than to change with the times.”

 

Strategic with resources

Advocacy groups have led ballot initiatives across the country, lobbied state legislatures and tried to convince members of Congress that leaving marijuana regulation to the states makes sense.

In the 1970s, NORML led the fight for marijuana law reform. Now, two other national organizations help run multimillion-dollar campaigns and station staff members across the country to support state measures that allow medical marijuana, decriminalize possession of small amounts of the drug or fully legalize adult use.

The Marijuana Policy Project, founded by former NORML staffers in 1995, has emerged as a political powerhouse with its robust fundraising, effective campaign messaging and expertise in drafting ballot initiatives and legislation. The Drug Policy Alliance was founded in 2000 to end the “War on Drugs.” The group claims that marijuana arrests disproportionately impact racial minorities and drain law enforcement resources. 

The groups and their state-level campaigns have benefited from billionaire philanthropists like Peter Lewis, the head of Progressive Insurance who died in 2013, and George Soros, the founder of Soros Fund Management. Both have donated millions of dollars to changing drug laws across the nation over the last 20 years.

During that time, the groups have honed their strategies.

Mason Tvert, director of communications for the MPP, said his organization targets states based on their history with marijuana law reform, the makeup of the state legislature, the governor’s position and the level of support from local advocacy groups.

And they must carefully decide where to put their money and resources.

When Rob Kampia, the group’s executive director, spoke at a National Cannabis Industry Association policy symposium in Washington, D.C., in April, he called efforts to legalize marijuana in Michigan, Missouri and Ohio “outlier initiatives” because they’re less likely to pass. He said in particular, the campaign to legalize marijuana in Ohio this fall was “premature.”

 

A message that’s worked

Allen St. Pierre, who succeeded Stroup as executive director of NORML a decade ago, said advocates for marijuana law reform have drawn from the tactics of the social movements for women’s rights, civil rights and gay rights.

“We’re not trying to hardly do anything different than those groups did,” St. Pierre said. “We organized. We petitioned our government peacefully for grievances. We went to the courts and asked for relief. We’ve used science and language to cajole, persuade and effectively win what is called in the military a ‘hearts and minds’ campaign.”

But it hasn’t been easy.

The MPP’s Tvert, who was a co-director of the campaign to legalize marijuana in Colorado, said that while the public had become more accepting of medical marijuana and supportive of removing criminal penalties for using the drug, there was still “this fear surrounding marijuana for fun.” Several ballot measures to legalize recreational use failed between 2002 and 2010.

At that time, Tvert said, activists had tried to sell one main message to voters: Marijuana prohibition is a government failure that forces marijuana into the black market, contributing to drug trafficking and violence. They argued that a legal market would allow for more control and would generate tax revenue.

That didn’t cut it.

“That just wasn’t enough,” Tvert said. “Ultimately, people were still not OK with it because they just thought it was too dangerous of a substance. You can tax anything. You can tax murder for hire. Doesn’t mean that people are going to think it should be legal. They think it’s not good for society.”

Survey results inspired legalization advocates to change tactics: Several MPP polls indicated that people were more likely to support marijuana legalization if they thought pot was less harmful than alcohol. And that became the argument behind the campaign supporting Colorado’s measure to legalize recreational marijuana, Amendment 64, which passed in 2012 with 55 percent of the vote.

Colorado became a model for the MPP's efforts in other states, which have all taken the campaign name “Regulate Marijuana Like Alcohol.” And the lawyer who wrote Colorado’s initiative also helped draft a proposed ballot measure in Maine, said David Boyer, the group’s political director for the state.

But the Maine campaign also made tweaks to its initiative, like lowering the tax rate, to make it more appealing to voters there.

Battling with local campaigns

Different groups advocate for legalization throughout the country, and they don’t always agree on the methods or details. In fact, some local groups have started to view the MPP as an unwelcome outsider.

In Maine, the organization’s proposal competes with one backed by a local group, Legalize Maine. Both would legalize marijuana possession for those at least 21 years old and would allow home growing. But the two campaigns have failed to compromise on several differences.

Legalize Maine’s proposal would put the state’s Department of Agriculture, Conservation and Forestry in charge of regulation, while MPP's would make the Bureau of Alcoholic Beverages and Lottery Operations responsible.

Paul McCarrier, the president of Legalize Maine’s board of directors, said the two groups tried to negotiate for three months. But McCarrier said MPP’s initiative did not focus enough on farmers.

“I think that they’re looking at Maine as just another notch in their belt that will help push their national agenda,” McCarrier said. “While the Marijuana Policy Project has done a really good job at starting a conversation about marijuana legalization here in Maine and trying to push the ball around the field nationally, when it comes to marijuana legalization, they are completely out of touch with normal Mainers.”

Falling dominoes

Stroup said liberalization of marijuana laws has followed a general trajectory. The Western states lead the way – reducing penalties for marijuana possession, allowing residents to use medical marijuana, or eliminating all penalties for marijuana use and creating systems for regulating pot sales. Then momentum builds on the East Coast. Progress is slower in the Midwest, and movement in the South has proven most difficult.

The increase in medical marijuana programs across the country has helped to overcome the stigma surrounding marijuana, Stroup said. More than three-quarters of people support medical marijuana use, according to a 2014 National Public Radio-Truven Health Analytics poll. But only 43 percent support legalization for recreational purposes.

MPP prefers to run ballot-initiative campaigns as opposed to pushing bills through state legislatures.

But Stroup identified the legalization movement’s next big turning point: Build enough political support to push the first full legalization measure through a state legislature. It’s an important step because about half of the states allow citizen-initiated ballot measures.

“We have to just simply work it every year, every chance we get, bringing in good witnesses, provide elected officials with the best information, and over a period of time, as they become more comfortable with the concept, then we’ll be winning it with state legislatures,” Stroup said.

But legislative measures have drawbacks as well.

“The version of legalization we win through legislatures will necessarily be more restrictive than the versions we win by voter initiatives because with an initiative, you don't have to compromise,” Stroup said.

Tvert said that in 2016, Rhode Island and Vermont could become the first states to legalize marijuana through their state legislatures. A majority in both states support legalization, according to internal and independent polls conducted this year. Both state legislatures adjourned this year before acting on bills to legalize and regulate pot.

Public opinion on the movement’s side

Time could be the legalization movement’s greatest ally. Sixty-four percent of those between 18 and 34 years old say they support legalization, compared to 41 percent among those 55 and older, according to Gallup.

“Demographically, we knew years ago we were going to win this because young people were on our side,” Stroup said. “We used to laugh, in fact, that if necessary we had a fallback strategy. And that was we would outlive our opponents. Well, I think to some degree that’s exactly what we’ve done.”

But advocates still need to convince a significant number of Americans to support recreational legalization.

“Despite the fact that the polls make it seem like it’s really split down the middle, there is a huge group of people who are kind of fishy on it,” said Sarah Trumble, senior policy counsel at Third Way, a centrist think tank in Washington, D.C.

Third Way refers to this group as the “marijuana middle.” Many in this group support legalizing marijuana for medical use but not for recreational use.

“On this issue, like all others, values are really what drive them,” said Trumble, who specializes in reaching moderates on social issues. “There’s a compassion value that ties into medical marijuana, and that’s why so many people support medical marijuana.”

She said she expects that as more states legalize, more Americans admit that they have used marijuana and the drug becomes less stigmatized, public opinion will continue to shift toward legalization.

“We’re going to have to see really how those ballot initiatives go because if you run strong campaigns and pass laws and states do a good job of regulating marijuana, that will be the first stepping stone to other states having it,” Trumble said. “But if a state, for example California, passes marijuana legalization for recreational and then does a poor job of regulating it, that could really set everything back.”

 

Letting the states experiment

NORML’s Stroup said he hopes the Obama administration will remove marijuana from the federal government’s list of the most dangerous drugs. Marijuana is listed as a Schedule I substance, which means it is a drug “with no currently accepted medical use and a high potential for abuse.” Other Schedule I drugs include heroin, LSD and Ecstasy.

Stroup said he’d like to soon see marijuana reclassified as a Schedule II or Schedule III drug, which wouldn’t make it legal to possess, sell or grow, but would make it easier for researchers to access. Other advocates have called for removing marijuana from the scheduling system completely.

The president has spoken about using marijuana himself as a young man, and he has said he does not believe marijuana is more dangerous than alcohol. He’s recently focused on criminal justice reform, calling for shorter sentences for nonviolent drug crimes.

“At a certain point, if enough states end up decriminalizing, then Congress may then reschedule marijuana,” Obama said during an interview with Vice in March. “But I always say to folks, legalization or decriminalization is not a panacea.”

A 2013 Justice Department memo stated that the federal government would only interfere under certain circumstances: if state or local law enforcement failed to prevent distribution of marijuana to minors, revenue from marijuana sales went to gangs or marijuana crossed into states where it remains illegal.

While Obama’s administration hasn’t interfered in states that have legalized, a future president could. That’s why Stroup wants federal law to leave marijuana regulation to the states, “so it doesn’t matter who’s president. States are free to experiment.”

Mario Moreno Zepeda, a spokesman for the Office of National Drug Control Policy, said the White House remains “committed to treating drug use as a public health issue, not just a criminal justice problem. The federal government opposes drug legalization because it runs counter to a public health and safety approach to drug policy.”

“This administration’s position on enforcement has been consistent: While the prosecution of drug traffickers remains an important priority, targeting individual marijuana users – especially those with serious illnesses and their caregivers – is not the best allocation of limited federal law enforcement resources,” Zepeda said.

From ‘unthinkable’ to ‘mainstream’

Michael Correia, the director of government relations for the trade group National Cannabis Industry Association, said that years ago, members of Congress took no positions at all on marijuana. Now, they are beginning to support research and allowing state medical programs to continue operating.

Still, he said marijuana issues haven’t become a major priority in Congress, especially among the leadership.

“Marijuana is not global warming. It’s not abortion. It’s not guns. So it’s not really high up on their radar screen, but it is an intriguing issue, and people need to get educated on some of the issues before they can form an opinion,” Correia said.

Dan Riffle joined the MPP in 2009, and worked as a state legislative analyst for three and a half years. Now the group’s director of federal policies, he said that in Congress, marijuana “is an issue that’s gone from being an untouchable, unthinkable, third-rail issue to a legitimate, mainstream topic of debate.”

“It’s gone from a place where we struggled to have (Congress members and staffers) take meetings with us, to have our phone calls returned, to now people reach out to us and ask us to come in and brief them and use us as a resource,” Riffle said.

Riffle tailors his message to his audience. If he meets with a member of the Congressional Black Caucus, for example, Riffle talks about the disparity in arrests between blacks and whites. If he sits down with a Republican who has libertarian tendencies, he drives home the argument that smoking pot is an individual decision.

Riffle said Congress is grappling with federal law that prohibits marijuana and state laws that allow its use. He said some lawmakers have tried to “address symptoms of that disease” with bills that would allow marijuana businesses to use banks, or permit Veterans Affairs doctors to recommend medical marijuana for veterans who live in states where it’s legal.

“But then you’re going to have other folks who say, ‘Look, rather than passing seven, eight, 12 different bills depending on what the issue is, let’s just grapple with the underlying problem,’ which is the conflict between state and federal marijuana laws,” Riffle said.

The Respect State Marijuana Laws Act – introduced by Rep. Dana Rohrabacher, R-Calif. – would do that by amending the Controlled Substances Act. It would change the federal law to protect anyone producing, possessing, distributing, dispensing, administering or delivering marijuana in states where those actions are legal. The bill has 14 co-sponsors, including six Republicans.

Rep. Earl Blumenauer, D-Ore., a longtime champion of marijuana law reform, said he anticipates the federal government will treat marijuana like alcohol within a decade.

“My judgment is with a new administration, with several more states legalizing, with public opinion solidifying, and with more and better research, I think in the next administration and the next Congress or two, we’ll be in a position to just basically say, ‘States, do what you want to do,’” Blumenauer said.

News21 reporter Anne M. Shearer contributed to this article. She is an Ethics and Excellence in Journalism Foundation Fellow. Brianna Gurciullo is the Kathryn Green Endowment and Stephen Holly Bronz Endowment Fellow. 

While a majority of the American public supports marijuana legalization for medical and recreational use, elected officials tend to be more hesitant to support liberalizing marijuana laws.Brianna Gurciullohttp://www.publicintegrity.org/authors/brianna-gurciulloKaren Mawdsleyhttp://www.publicintegrity.org/authors/karen-mawdsleyKatie Campbellhttp://www.publicintegrity.org/authors/katie-campbellhttp://www.publicintegrity.org/2015/08/16/17827/marijuana-legalization-movement-begins-states

Colorado profits, but still divided on legal weed

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This project was produced by News21, a national investigative reporting project involving top college journalism students across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

DENVER — Broadway Street near downtown Denver used to be known for its eclectic antique stores. Now known to locals as “The Green Mile,” the street is lined with marijuana dispensaries — Ganja Gourmet, Colorado Wellness and Green Depot — along with tattoo parlors, a boot shop, a skate shop and storage units.

The smell of marijuana wafts through the air. Around the corner are the unmarked cultivation and production warehouses that feed the freedom of legal marijuana.

As of July, the state of Colorado had issued 2,446 licenses for marijuana cultivation, production and testing facilities and retail stores in both the medical and recreational markets. Just 18 months into the legalization era, the state’s estimated annual demand for marijuana is already about 130 metric tons, according to a study by the Marijuana Policy Group.

Known for years, even before legalization, as a pot smoker’s haven, investors, business owners, tourists and many residents argue that legal recreational marijuana has been nothing but good for Colorado, bringing in more than $79 million for the state in taxes and fees during the fiscal year 2015. And those figures don’t keep track of the economic contributions of thousands of tourists who come to Colorado partly for its marijuana.

According to Colorado’s Marijuana Enforcement Division, up to 90 percent of recreational sales in some areas, namely mountain towns, are made to tourists coming to enjoy the crisp mountain air, freshly powdered ski slopes and bountiful weed.

When Colorado’s Amendment 64 legalized recreational marijuana in 2012, most of its support came from voters in Denver and the surrounding metropolitan area — and not from more rural areas, leaving a state divided over the drug that is still illegal under federal law.

Out of 321 municipalities in Colorado, 228 “opted out” of allowing marijuana. Local officials and law enforcement throughout the state, unconvinced of the benefits of marijuana, have tried to push back against legalization, citing the federal government’s ban on marijuana, going so far as to file lawsuits against their own governor.

Across the state, headed into the desert of western Colorado from the red rocks of Utah, the landscape is almost void of recreational dispensaries. One exception, about 60 miles into the state, is De Beque, a one-exit town of 500 people where a gas station and the Kush Gardens pot shop sit at the side of the interstate.

“In the last 10 years, nothing has changed, people are still obtaining marijuana and using it, they’re just doing it in a legal, regulated market now. Now they’re just paying a tax on it and giving back to the community,” Jim Roberts, operations manager of Kush Gardens, said.

Amendment 64 passed with 54.8 percent of the population voting in favor of recreational marijuana for those 21 and over, allowing residents to purchase up to an ounce of marijuana and tourists to purchase up to a quarter-ounce.  Most of those votes came from the Denver metropolitan area. Now, smaller municipalities are deciding whether they want to include marijuana in their jurisdictions, with more beginning to allow marijuana dispensaries to capitalize on tax dollars.

In Kush Gardens’ case, De Beque is allowing it to operate, but keeping a close watch on the building with names of marijuana strains plastered on the building and a bright green cross sign out front to lure travelers.

“The sky’s kind of the limit right now in the industry, and that’s what makes it so exciting,” Roberts said. “It’s in its infancy. And it’s just exploding like a supernova, and it’s the new gold rush of the 21st century.”

In one year, the state added about 900 new marijuana licenses for retail purposes, according to the Marijuana Enforcement Division. One of the state’s goals for marijuana legalization is to have the industry’s regulation pay for itself through licensing and tax revenues. For 2015-2016, the Marijuana Public Awareness Campaign, which works to inform residents and visitors of how to consume cannabis safely and legally, got $2.15 million. Local law enforcement training got $1.17 million. The governor’s office received $190,097 to form the Governor’s Office of Marijuana Coordination.

Colorado public schools are benefiting as well. Amendment 64’s main selling point to the voters was that it would provide up to $40 million annually for school construction to the Department of Education’s Building Excellent Schools Today program. When Amendment 64 passed, Colorado earmarked certain tax money for school construction and repairs.

In the first year, Colorado put $18 million into the program.

Benefits of legal weed

Marijuana tourism companies have become an industry of their own in the past year. Companies including 420 Tours, Colorado Green Tours and Colorado High Life Tours offer activities from cannabis cooking classes to grow house tours and cannabis yoga retreats.

Nestled into a historic Denver neighborhood sits Adagio Bed & Breakfast, an old pink house that creaks with every step and is filled with cabinets, couches and an ample supply of bongs.

Adagio is part of a chain started by Joel and Lisa Schneider in their new ‘cannahospitality’ and ‘cannalodging’ Bud & Breakfasts, soon to be joined by a ‘cannacamp’ on a ranch near Durango, in the state’s southwest. The Schneiders moved to Colorado for the weed and the money that follows it.

Wisconsin native Heidi Keyes is the CEO of her own marijuana painting class, aptly named Puff, Pass and Paint. She hosts classes in a studio space. Before she moved into her own studio, she used the garage at Green Labs, a shared space for cannabis enthusiasts and entrepreneurs. She provides paint, canvases, and sponsor samples of bud from dispensaries to supplement her class’s bring-your-own cannabis policy.

Keyes moves around the room to help customers, occasionally pausing to go back to the front and paint the next step on a landscape.  As she walks through the poorly ventilated garage during the two-hour class, she sips down most of a bottle of white wine and takes hits of the sample pot, smoke lingering in the air.

“What I want people to know about the industry is that there’s no stereotypical stoner anymore,” Keyes said. “We’re passionate about marijuana but we’re business people as well and there’s a whole new demographic that is trying marijuana also.”

Most tourism outlets don’t deal directly with marijuana. They leave marijuana acquisition and use to the tourists. When the Schneiders first opened their Adagio location, they acquired samples of bud to leave out for their customers. In response, Joel Schneider said the city of Denver said the Schneiders were distributing marijuana without a license, and banned Joel Schneider from coming to his business.

“The original citation turned into a public nuisance where I was not even allowed to come here. I was actually prohibited from being here. But we’ve resolved the city issues to my favor, and it’s over,” Joel Schneider said. 

The Schneiders said they have formed partnerships with nearby dispensaries, allowing their customers to get discounts and deals on the strains of their choice, and are still permitted to set out samples at their Silverthorne location. The Schneiders and dispensary owner Roberts echoed the sentiment that in the era of recreational marijuana, there is no longer a "typical stoner."

“When you look at how diverse the people that come through the door (are) and you know to think that as little as 10 years ago as little as a plant in someone’s yard could mean years in jail in some municipalities, it’s crazy,” Roberts said.

Law enforcement displeased with legal weed

In Colorado’s booming market of marijuana, the state is still figuring out the ways to regulate and enforce legal weed. The Marijuana Enforcement Division, a branch of the Department of Revenue, is tasked with keeping track of all the legal marijuana in the state — until it gets sold. Housed within a series of drab, quiet buildings filled with conference rooms and men in suits, the MED is a far cry from stores stocked with shelves of product and customers eager to purchase their next high.

As the state’s marijuana business grows, the MED has had to race to keep up.

“The challenges are trying to roll out a regulatory framework and a program at the same time you’re trying to hire employees,” Ron Kammerzell, the soft-spoken senior director of the Department of Revenue, said. “That’s a daunting task, but we’ve been able to do it.”

The MED is tasked with keeping track of all marijuana from seed to sale, making sure businesses stay compliant and keeping track of all the inner workings of the industry, similar to divisions made for alcohol and tobacco enforcement.

Taxes from marijuana go into the Marijuana Tax Cash Fund, and then the money is allocated to programs relating to marijuana, including drug abuse programs, regulation and enforcement.

“Clearly, the things that we’re really focused on right now are public safety issues, diversion, making sure we keep it out of the hands of kids, and I think those will continue to be the primary objectives,” Kammerzell said.

By May 2015, the MED had received over $14 million from licensing and application fees, but numbers for the whole year won’t be out until later. The MTCF gave MED an additional $7.6 million for fiscal year 2016.

“Our philosophy is that marijuana should pay its own way, that the cost of legalization should be funded by the revenues that come from legalization and that’s why MED is funded the way it is,” said Skyler McKinley, deputy director of the Governor’s Office of Marijuana Coordination.

Law enforcement across the state has found issues with marijuana, whether with caregivers having too many plants or marijuana crossing borders. With his commanding voice and presence, Jim Gerhardt, vice president of the Colorado Drug Investigators Association, is critical of the MED and the state’s marijuana system. The Colorado Drug Investigators Association is a nonprofit group of law enforcement professionals who collaborate on drug enforcement issues.

“We are not dependent on marijuana being legal or illegal from a financial standpoint. We are vested in it from a public safety standpoint. The MED however, they have to have licensing fees or they don’t exist. There have been frustrations on the part of the industry,” Gerhardt, a sergeant in the Thornton Police Department, said.

Gerhardt said that police don’t have the resources to keep up with the legalization of marijuana, and that the details surrounding marijuana enforcement aren’t always clear to officers.

“Marijuana investigations are now more time-consuming and complex than they’ve ever been … we don’t have the resources to handle all the problems and complaints we have,” he said.

The side effects of marijuana are extreme, according to Gerhardt. More marijuana is being seized in schools. People are coming in to Colorado, buying weed, and driving straight back out. Potency levels in marijuana are strong, and edibles have been associated with suicides and violent crimes in Colorado, according to Gerhardt. Hash oil extraction attempts have ended in explosions, according to Larimer County Sheriff Justin Smith.

“We’ve had some of the dispensaries put in the name of a local Colorado resident with a clean criminal history but it was being funded by Colombian drug interests,” Gerhardt said. “We have other groups that put these businesses in a false name. Or they have held license and diverted marijuana to another state. We’ve seen all that. Whatever scheme you can think of people have found a way to get into the marijuana business here in Colorado and exploit what we’ve started here.”

Gerhardt said that the government didn’t put enough measures in place to ensure that marijuana users were obeying the law.

“There’s also a requirement that anybody with a home-grow is supposed to register those with the state. I don’t think there’s a single person who’s done that,” Gerhardt said.

The conflicting laws of the constitution have driven Smith, Larimer’s elected sheriff, to sue the Colorado governor.

“It put us in the situation where a state constitutional amendment mandates that sheriffs get involved in certain acts, which are a violation of the federal law,” Smith said. “We have several constitutional conflicts that sit before us and there really is no guidance out there.”

Smith, along with 11 other sheriffs from Colorado, Nebraska and Kansas, sued Colorado Gov. John Hickenlooper in March. They are seeking clarification from courts on how to properly enforce state marijuana law without breaking their vows to the federal government to keep drugs out of the general population.

Six of the 11 sheriffs are from Colorado, all from counties that have voted against recreational legalization, except Smith, who says that legalization of marijuana in his county has led to problems from an increase in the homeless population to health concerns from poorly maintained home-grows.

“There was a big reassurance to the citizens that this would be well regulated by the state and a lot of ways we’ve seen that’s not been true,” Smith said. “Partially, I think it was a faulty scheme that didn’t come together well, it came together quickly.”

Smith said his officers run into conflicts when they arrest someone who is in possession of marijuana — by Colorado’s law, they have to give it back. But giving marijuana back is a violation of federal law.

“You know, I personally don’t believe that having a stoned workforce and more youth using marijuana is good for our state, good for our nation,” Smith said. “But I’m not the one that makes the laws. However, I can’t be in the position of violating laws in the actions and course of my duties.”

Last December, the states of Oklahoma and Nebraska filed a lawsuit against Colorado, stating Amendment 64 was “devoid of safeguards” to keep pot from crossing state borders and into the black market. In February, anti-drug groups filed suit arguing that Colorado is violating federal laws.

From the plains of Wyoming and Kansas, Colorado’s neighbors aren’t as accepting.

“We’re really on an island here right now where all of our bordering states, they don’t have retail marijuana legalized. All but one don’t even have medical, so that’s got to be a high priority for us as a state is to do everything we can to keep it from crossing the state borders,” Kammerzell of the MED said.

Law enforcement from other states has expressed its concerns, but Colorado says it's nearly impossible to keep marijuana from crossing state lines. Officers said they can no longer search a person, car or property based on the smell of marijuana. That prevents them from knowing whether an individual possesses a legal ounce or 10 times the legal limit.

“The reality we have is we’ve essentially been declawed,” Smith said. “The best we can typically do is call ahead and tell the neighboring jurisdiction, ‘Hey, we’ve got this and this is where they’re going. If you catch them in your state, the mere possession is against the law.’”

Illegal weed is still pouring in and out of Colorado, but the legal market has put a dent in the black market, according to law enforcement.

“This past year, through our inventory tracking system, we’ve sold about 70 metric tons of marijuana. So, if you do the math, there’s a stock out there of about 60 metric tons,” Kammerzell said, citing the study that measured marijuana demand at 130 metric tons. He said the MED doesn’t expect the black market to disappear, only diminish, especially while recreational marijuana remains illegal in 46 states.

“I can tell you, ultimately, if you really want to run the black market out of town, if you really want to put a dent in the cartels, if you want to stop a lot of this diversion, here’s what has to happen: The federal laws on marijuana have to change and allow for legalization. Every single state has to allow for legalization, basically the way they did for alcohol,” Gerhardt said.

Law enforcement and MED officials agree that marijuana needs to be kept out of the hands of children. “We’ve literally had kids in second, in third grade that have brought pot to school to show and to provide to others. As young as that,” Gerhardt said.

Smith fears that all of the issues law enforcement has come across are tearing Colorado apart from the rest of the nation, and could lead to larger problems down the road if left unaddressed. “If states can essentially violate federal law and have no repercussions, then over time this continues, we’re no longer one nation, we’re 50 separate states,” Smith said.

News21 Fellows Montinique Monroe, Dom DiFurio and Jessie Wardarski contributed to this article. Monroe is a Knight Foundation Fellow. DiFurio is a Reynolds Fellow. Wardarski is a Chip Weil Foundations Fellow.

Marijuana sits in a shelf in The Grove, a Strainwise Dispensary in Denver, with a sign denoting it's for recreational use.Clarissa Cooperhttp://www.publicintegrity.org/authors/clarissa-cooperhttp://www.publicintegrity.org/2015/08/16/17841/colorado-profits-still-divided-legal-weed

States find their own path on medical marijuana policy

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This project was produced by News21, a national investigative reporting project involving top college journalism students across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

After waiting in line for hours at a booth during a medical marijuana convention in San Francisco, Jeff Harrington needed only a two-minute consultation and a written recommendation to become a medical marijuana patient in California. He now can legally purchase and possess marijuana from any one of thousands of marijuana businesses in the state.

Across the country in Connecticut, an established physician-patient relationship is required before patients are deemed qualified for medical marijuana, and only licensed pharmacists can own and operate dispensaries.

Between these two extremes, a News21 investigation has found there are as many ways to deal with medical marijuana as there are states that have legalized it.

As the federal government continues its prohibition of marijuana, the District of Columbia and the 23 states that have legalized marijuana for medical use have been left to write the rules and regulations on their own.

The experimentation has produced wide variances and contradictions in their approaches to everything from possession limits and lab testing to how people qualify as medical marijuana patients.

For example, in Vermont, a medical marijuana patient is allowed only two mature plants and two ounces of marijuana. By contrast, in Washington state, a patient can have 15 plants and 24 ounces of prepared marijuana.

In some states, like New Mexico, there is no fee for a medical marijuana card, while others, such as Minnesota, charge up to $200. Some states do not tax medicinal marijuana, but others charge a sales tax or a specific tax on marijuana products of as much as 37 percent in Washington state.

Because marijuana remains a federally controlled, Schedule 1 drug, federal agencies do not offer states any guidance or medical protocol for state medical marijuana programs.

“Based on the research to date, the U.S. Food and Drug Administration has not recognized or approved the marijuana plant as medicine,” Mario Moreno Zepeda, spokesperson for the White House Office of National Drug Control Policy, said. “However, research on marijuana extracts, called cannabinoids, has led to FDA-approved medications.”

FDA approval of marijuana would require “carefully conducted studies (clinical trials) in hundreds to thousands of human subjects to determine the benefits and risks of a possible medication,” according to the National Institute on Drug Abuse.

The News21 analysis of medical marijuana programs across the country also showed states diverge on what health conditions qualify a patient for medical marijuana, and little or no research has been done to determine whether marijuana or its derivatives effectively treat those conditions. AIDS, cancer and chronic pain qualify as conditions for medical marijuana treatment in more than 20 states. But traumatic brain injury qualifies only in New Hampshire and Tourette syndrome qualifies only in New Mexico.

To be considered qualified for medical marijuana, patients under all 24 programs must be diagnosed with an approved condition by a physician. Yet the standards for physician evaluations vary. The California doctor that Harrington saw in San Francisco legally certified him for medical marijuana even though the consultation took less than five minutes and he was one of hundreds seen on the same day. That’s all that’s required in California.

A single physician in New Jersey has approved over 1,000 of that state’s more than 4,000 medical marijuana patients. In Washington state, at least 12 doctors have faced penalties for operating so-called mills at which they recommended medical marijuana for large numbers of people, according to Donn Moyer, a spokesman from Washington state’s health department.

Dr. Anthony Anzalone, the New Jersey doctor who has paved the way for over 1,000 of the state’s medical marijuana patients, is a former gynecologist who left his former practice to evaluate patients for medical marijuana. He said that he wants to see patients have access to medical marijuana, even if he has to dig for a reason.

“Patients say, ‘Oh, I have post-traumatic stress.’ I say, ‘Unfortunately, the state will not allow it at this point in time. However, tell me more. Do you have any kind of GI (gastrointestinal) problem - irritable bowel (syndrome)?’” Anzalone said. “They don’t think about that.”

He said the idea is to make people feel better – not high.

“If you are not getting approved for medical marijuana in New Jersey, you are going to the wrong doctor,” said Anzalone’s patient counselor, Kevin Long.

Connecticut is the only state that treats medical marijuana like any other pharmaceutical drug.

Jonathan Harris, commissioner of the Connecticut Department of Consumer Protection, said Connecticut is “the only state in the nation that has a true medical marijuana program.”

Once patients are approved by a doctor and registered through Harris’ department, they must obtain their medical marijuana from one of six licensed dispensaries, which are owned and operated by licensed pharmacists.

When Laurie Zrenda, a pharmacist of 27 years, opened her dispensary in Uncasville, Connecticut, patients handed her hundreds of dollars in cash to pay for their medical marijuana.

“And then, I realized they were paying their drug dealers all of this money before,” she said. “They were used to it.”

Her dispensary, Thames Valley Alternative Relief, serves 515 patients. “I didn’t realize how widely used it was for so many other conditions,” she said. “It’s pretty amazing that one plant can do all these things. … I know the evidence is anecdotal, but it’s there. It’s hard to deny it.”

Eight states – Connecticut, Delaware, Illinois, Maryland, Minnesota, New Hampshire, New Jersey, New York ­– and Washington, D.C. – require patients to use dispensaries rather than allowing the option of home cultivation.

Of those, seven states require their dispensaries to submit product for testing.

New Jersey’s Public Health and Environmental Laboratories, however, is the only state-run lab in the United States to test product from the medical marijuana dispensaries, according to Megan Latshaw, the director of environmental health programs for the Association of Public Health Laboratories.

According to Dave Hodges, a dispensary inspection monitor in New Jersey, these tests are only conducted when requested by the dispensary.

Sixteen states and the District of Columbia, though, have no requirements in terms of testing, according to a News21 analysis of state laws.

For example, private testing for pesticides or other harmful chemicals is available in Maine, but neither home cultivators nor dispensaries are required to submit samples to labs. Tests also are not required in Maine to determine cannabidiol (CBD) or tetrahydrocannabinol (THC) levels.

CBD is the non-psychoactive component of the marijuana plant. It has yet to be proven scientifically as a successful treatment, though anecdotal evidence suggests it helps some patients who use it. Tetrahydrocannabinol (THC) is the part of the plant that produces a high and is used to treat pain, nausea and insomnia, among other symptoms.

Without testing, the potency of a strain is difficult to measure. In states with limits on THC levels, determining potency is key to creating a product within the law.

Seventeen states have passed legislation allowing only for cannabis extracts, such as oils. The states determine a mandatory ratio of CBD to THC, usually limiting the amount of THC, and in this way, the psychoactive effect. But there isn’t a consensus on that ratio.

For example, North Carolina allows no more than 0.3 percent THC in oil, while Georgia permits up to 5 percent THC.

Though these 17 states have limited patients to using extracts, others give medical marijuana patients the option of using their medical marijuana by smoking, vaporizing, or eating edibles, such as cookies and butters.

Hawaii does not have operational dispensaries at all, leaving caregivers like Jari Sugano to make the oil her daughter, Maile Jen Kaneshiro, takes three times a day. Kaneshiro has Dravet syndrome, a rare form of epilepsy that causes her to have severe seizures.

Kaneshiro’s pediatric neurologist Dr. Greg Yim said the CBD oil she takes through a feeding tube in her stomach has helped her, but he does not know why it has been so effective while other medications have failed.

“I don’t think anybody's really studied it enough to know what about the cannabidiol portion of medicinal marijuana is really working to control the seizures,” Yim said. “But when you’re talking about intractable epilepsy and you’re talking about alternatives, it’s good to be open minded to help these patients.”

Like other medical marijuana programs in the country, Hawaii is still working to create an effective system that provides safe, reliable medicine to its patients.

Since the 1990s, state legislatures have passed bills providing for legal medical marijuana without anticipating the exponential increase in demand. States have been left to muddle through regulatory procedures and without guidance from the federal government.

Moreno Zepeda, spokesman for the White House drug czar, said, “Marijuana is illegal under federal law, and we remain committed to treating drug use as a public health issue, not a criminal justice problem.”

“This administration will continue to support scientific research, which may lead to more safe and effective medications in the futures,” he added.

Anne M. Shearer is an Ethics and Excellence in Journalism Foundation Fellow. Rilwan Balogun is a John and Patty Williams Fellow.  

Dr. Anthony Anzalone is a New Jersey doctor who paved the way for more than 1,000 of the state’s medical marijuana patients. This "My Dr. Greenleaf" soothing cream, shown here, is just one of the many all-CBD medical marijuana products the doctor and his company sells online. Katie Campbellhttp://www.publicintegrity.org/authors/katie-campbellAnne M. Shearerhttp://www.publicintegrity.org/authors/anne-m-shearerLauren Del Vallehttp://www.publicintegrity.org/authors/lauren-del-valleRilwan Balogunhttp://www.publicintegrity.org/authors/rilwan-balogunhttp://www.publicintegrity.org/2015/08/17/17852/states-find-their-own-path-medical-marijuana-policy

Health insurers working the system to pad their profits

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One of the reasons the health insurance industry worked behind the scenes in 2009 and 2010 to derail Obamacare was the fear that changes mandated by the law would cut their Medicare Advantage profits. Medicare Advantage plans are federally funded but privately run alternatives to traditional fee-for-service Medicare. 

Although the industry’s biggest trade group, America’s Health Insurance Plans, said repeatedly that insurers supported Obamacare, the group was secretly financing the U.S. Chamber of Commerce’s TV campaign against reform. Among the companies most concerned about the law were those benefiting from overpayments the federal government had been making to their Medicare Advantage plans since George W. Bush was in the White House.  

Bush and other Republicans saw the Medicare Advantage program as a way to incrementally privatize Medicare. To entice insurers to participate in the program, the federal government devised a payment scheme that resulted in taxpayers paying far more for people enrolled in the Medicare Advantage plans than those who remained in the traditional program. The extra cash enables insurers to offer benefits traditional Medicare doesn’t, like coverage for glasses and hearing aids, and to cap enrollees’ out-of-pocket expenses.

When the Affordable Care Act became law in 2010, the payments to Medicare Advantage plans exceeded traditional Medicare payments by 14 percent. To end what they considered an unfair advantage for private insurers, and to reduce overall spending on Medicare, Democrats who wrote the reform law included language to gradually eliminate the over-payments.  So far, the 14 percent disparity has been reduced to 2 percent.  The final reductions are scheduled to be made next year.

Despite that decrease, the fears by Republicans and insurance company executives that the reductions would lead to a steady decline in Medicare Advantage enrollees have proved to be completely unfounded. In fact, the plans have continued to grow at a fast clip.

In March 2010, the month Obamacare became law, 11.1 million people were enrolled in Medicare Advantage plans—one of every four people eligible for Medicare. That was an increase from the 10.5 million Medicare Advantage enrollees in March 2009. Since then, Medicare Advantage membership has grown by more than 8 percent annually. Now 17.3 million—one in three people eligible for Medicare—are enrolled in private plans.

As Center for Public Integrity senior reporter Fred Schulte has written over the past year, many insurers have discovered that even though the overpayments are being reduced, they can boost profits another way: by manipulating a provision of a 2003 law that allows them to get additional cash for enrollees deemed to be sicker than average.

A risk-coding program was put in place by the government primarily because insurers were targeting their marketing efforts to attract younger and healthier—and thus cheaper— beneficiaries. Under the risk-coding program, insurers are paid more to cover patients who are older and sicker; the idea was to encourage the firms to cover those folks by offering a financial incentive. They get more money, for example, to cover someone with a history of heart disease than they do for someone with no such risk.  Last week Schulte uncovered whistleblower accusations that a medical consulting firm and more than two dozen Medicare Advantage plans have been ripping taxpayers off by conducting in-home patient exams that allegedly overstated how much the plans should be paid.

The Center for Medicare and Medicaid Services has refused to provide information that would enable taxpayers to know just how widespread fraud and abuse in the Medicare Advantage program might be. But CMS announced earlier this year that it will implement plans designed to make it harder for insurers to manipulate the risk scores. As you can imagine, insurers have howled and have put on a full court press to get CMS to scuttle those plans, but so far the agency says it intends to go forward. We’ll see.

This all matters to insurers because more and more of their revenue and profits are coming from the Medicare and Medicaid programs. When Aetna announced a few weeks ago that it planned to buy Humana, which has more than three million Medicare Advantage members—second only to UnitedHealthcare—Aetna and Humana executives said 56 percent of revenues from the combined company would come from the government programs.

Indeed, some of the firms would not be growing at all if it weren’t for their government business. When Aetna announced second quarter earnings earlier this month, the company noted that its membership in Medicare and Medicaid programs was up 8 percent over the same period last year. By contrast, its commercial membership was down from last year.

Despite that dip in commercial membership, Aetna surprised Wall Street with stronger profits than financial analysts had expected.

So don’t expect the Medicare Advantage program to wither on the vine because of Obamacare. If anything, it will continue to grow—as will the profits of the private insurers that participate in the program.

Wendell Potter is the author of Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans and Obamacare: What’s in It for Me? What Everyone Needs to Know About the Affordable Care Act.

The Dr. Amando Badia Senior Center in Miami hosted a 2014 round table featuring Florida Gov. Rick Scott where a group of senior citizens expressed their concerns on how proposed cuts to Medicare Advantage plans would affect them.Wendell Potterhttp://www.publicintegrity.org/authors/wendell-potterhttp://www.publicintegrity.org/2015/08/17/17863/health-insurers-working-system-pad-their-profits

High expectations for business of marijuana

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As marijuana prohibition falls in one state after another, cannabis sales are shifting from street corners to storefronts as opportunists line up to cash in on what optimists say is the biggest investment opportunity since the dot-com boom of the turn of the century.

Investors of all varieties are starting to look at marijuana as less of a stoner’s fad and more of a serious business venture. The industry totaled $2.66 billion in U.S. sales in 2014, up 74 percent from $1.53 billion the year before, according to the ArcView Group, a cannabis industry investment network. Experts expect billions more in future growth from states where the drug remains illegal – for the time being.

Business insiders said they expect the market to expand to many times its present size as more states legalize marijuana for both medical and recreational use. The cannabis trade has not only brought in millions for dispensary owners and cultivators, it’s also created a thriving ancillary market, driven job growth and boosted property values, marijuana advocates claim.

But the challenges are many for the kind of high-risk, high-reward investment that cannabis calls for. No industry since post-Prohibition alcohol has come close to having had a harder time getting off the ground, from strict regulation and heavy taxation to a lack of investors and banking services.

“A lot of people look at the cannabis industry and say, ‘Oh my God, it’s so much harder. (There are) so many barriers … You've got endless problems,’” said Troy Dayton, CEO of the ArcView Group. “Well, some people see endless problems. Other people see endless problems disappearing fairly soon and see this as a great investment.”

Dispensaries and cultivators not only ones making money

Jamie Perino, the CEO of Colorado-based Euflora dispensaries, said the three-store chain has so many customers, the company is eager to apply for more business licenses. Perino said they want to open more outlets, not only in Colorado but also across the country.

Perino estimated that Euflora, dubbed the “Apple store” of pot for its tablets next to every product displaying information about potency, strains and more, brings in 2.5 million visitors a year at its 16th Street Mall location in downtown Denver.

A security guard immediately greets each customer. Workers give them a scanner to take note of products they like, an idea inspired by Target wedding registries.

Perino isn’t a marijuana enthusiast, but the financial opportunities were too good to pass up, especially after Colorado became the first state to legalize recreational marijuana in 2012. Dispensaries began opening in 2014. After working in the building industry for 15 years, Perino made the switch.

“There were CEOs, CFOs, from pharmacy, banking, real estate,” Perino said. “People were leaving their jobs to get into this industry, and I think that if they are getting into it, maybe they know something I should know. … It just seemed like a great opportunity to be the grass roots of something big. I mean, it’s kind of being compared to the tech boom of several years ago and to be at the forefront of it is really exciting.”

Colorado alone brought in about $79 million from taxes and fees on the marijuana industry in fiscal year 2015.

On the fringes, ancillary business also have found money-making niches to fulfill the needs of marijuana businesses. Cultivators need high-wattage lights to grow cannabis indoors. States have contracted seed-to-sale tracking systems to try and stop cannabis from slipping to the black market. Limousine companies shuttle paying customers from dispensary to dispensary.

J.B. Woods, co-owner of Greenpoint Insurance Advisors LLC, is based in the Denver area but specializes as an insurance broker for dispensaries nationwide. It’s a necessity for companies storing marijuana by the pound and cash by the bundle.  

“There are a couple of states who have made it really very clear that insurance is an important part of the licensing process,” Woods said.

The security danger spawned by the all-cash industry also has created a secondary market of its own. Companies provide security cameras, alarm bells and guard dogs.

Dan Williams, CEO of Canna Security America, a security solutions provider, said employee theft makes up to 90 percent of missing product and proceeds. Williams, whose company services hundreds of marijuana operations, has seen stealing of all varieties – “budtenders" casually pocketing cash between transactions to trimmers throwing away bud to then dumpster-dive after hours.

Businesses often require workers to don pocketless suits when trimming weed and search employee bags. 

 “A lot of people, they know that the cameras are there, but they don't necessarily think anyone watches them,” Williams said. “They just think they're going to get lucky. And oftentimes they do.”

As acceptance spreads, industry matures

When the ArcView Group first started hosting conferences to connect marijuana businesses with cautious early investors, the events reinforced quite a few stoner stereotypes, ArcView CEO Dayton said.

He described a ragtag lot who cared more about smoking weed than making money off it. Many of the presenters looked uncomfortable in suits and ties and floundered through their pitches.

“When we first started doing these events, if you could complete a sentence, we would put you on stage,” Dayton said.

In those early days, investors didn’t exactly flock to marijuana. Until September 2013, ArcView only allowed ancillary businesses the chance to pitch. Dayton said that at the time, they believed companies with direct contact with the plant posed too much risk.

ArcView events now draw a sharply dressed mix of professionals who whip through presentations with practiced precision – a reflection of the maturing industry, Dayton said. Though ancillary businesses are still popular, many of the current companies work directly with cannabis.

As more states legalize, shifting social attitudes have opened the door for a host of white-collar professionals who once shied away at the mere mention of marijuana. Lawyers are leaving their corporate firms behind. Bankers are closing down their tills. Business is serious. Business is brisk.

From Hawaii to New York, 23 states across the country, plus Washington, D.C., have approved marijuana for medical use, with Alaska, Colorado, Oregon, Washington state and Washington, D.C., legalizing recreational marijuana, as well.  

The legalization tide has flooded the marijuana market with entrepreneurs who must distinguish themselves amid rising competition. Innovators have come a long way from the joints they rolled in high school parking lots and the bowls they smoked beneath the front porch.

There are hookahs and bubblers, volcano vaporizers and percolated bongs. Consumers slurp down THC-infused ice cream and gnaw on gummy bears that aren’t made for children. They slather on lotions permeated with marijuana oil and dollop out droplets of tinctures, cannabis extracted with alcohol.

The secondary market of ancillary businesses has filled the gap to meet a growing demand for the latest and greatest way to get high.

With only $9,000 of her own savings, Hilary Dulany in 2013 started Accuvape, a vaporizer manufacturer that supplies more than 250 retailers across the country.

Dulany, who does cannabis consulting on the side, said the glitz and glamor is in dispensaries, but so is the competition.

“People don't understand that there's so many ancillary businesses out there,” she said. ”There’s so many holes in the market. You don't need to quit your job and invest your life savings into a dispensary or a grow site.”

Although it can be difficult to get into the dispensary business – with steep initial investments and time-consuming licensing – those who try said the potential profit in a growing market makes the endeavor worth it. State licenses can be hard to come by, but once in hand, caps on dispensaries can limit competition and provide a big payday. 

Nearly two years ago, Illinois approved a medical cannabis pilot program. Dispensaries plan to open this year to serve the state’s 2,600 approved patients.

Brad Zerman, who plans to open one of the state’s 56 dispensaries, said he sees it as a smart business investment.

“I’m an entrepreneur. I’ve had businesses since I was 23 years old,” Zerman said. “Everything about this business is difficult. You really just have to be up for a good challenge.”

Zerman said that expanding east is becoming increasingly attractive – both for his business and eager investors throughout the nation. Zerman is applying for a license in Massachusetts and exploring other East Coast states.

“We’re hoping that having been awarded a license from a really restrictive state will help our credibility,” Zerman said.  

Though social attitudes are leaning more in marijuana’s favor, the majority of traditional investors – who tend to be more conservative with their choices – have kept their caution.

Boston-based Dutchess Capital, a global money manager of more than $2 billion in assets, moved into marijuana in 2012, one of the first companies to invest in the field.

Doug Leighton, managing partner at Dutchess, said it “took a very long time to get comfortable, given the federal government’s stance” on the Schedule 1 drug – a drug that has no medicinal benefits and can’t be legally bought and sold. It makes investors wary of potential federal prosecution. But the potential profits outweighed the risk.

“We did our homework,” Leighton said. “But it’s weed. We’re not going to lose. How are we going to lose?”

Headaches abound for marijuana entrepreneurs

Though promises of profit have lured entrepreneurs to marijuana, making money has proven anything but easy for many. Steep initial investments sting. Heavy taxes cut into bottom lines. The know-how to navigate complex regulations can separate those who make it from those who don’t. For every successful business, many more fail, experts said.

“We’ve got a room full of banker’s boxes with files from businesses who didn’t succeed,” said Woods, the Denver insurance broker.

Janet Sameh and her husband, Joe, had a board of investors who collectively invested about $200,000 to apply for a dispensary license in Illinois.

The state denied hundreds of applicants, including Sameh. She said the process for selecting applicants wasn’t as objective as it appeared.

Illinois scored applicants on points in their plans, such as location, security and financial models. Sameh said she and her group had everything ready to go.

“We could have gone and challenged it, but for a dispensary, it didn't pay,” Sameh said. “It’s just worth it to say, 'OK, you know, in a ball game some teams win and some teams lose, you know, let’s move on.'”

To even apply for a license, many municipalities require dispensary hopefuls to lease a suitable location beforehand, so owners pay rent for months without knowing for sure if they’ll ever be able to open.

Despite some chain dispensaries popping up in legalized states, operators find it difficult to expand their businesses across state lines. Banking solutions are few and far between, and the Department of Justice has issued strict guidelines for any bank that touches marijuana proceeds.

Because the federal government categorizes marijuana as an illegal, Schedule 1 drug, financial institutions are reluctant to deal with it, fearing federal repercussions. Many in the industry must stuff stacks of currency in safes and pay state and federal taxes in cash.

Taxes, too, are tough. On tax returns, marijuana companies can’t write off business expenses tied to the drug. Other lines of work rely on such tax breaks to make a profit.

But an obscure 1980s federal tax code amendment, 280E, hammers businesses that deal in marijuana, namely growers and dispensary owners. The provision – which blocks businesses that deal in federally controlled substances from taking tax credits or exemptions – slows down growth, experts said.

“280E is really a dagger at the throat of the entire legal cannabis industry,” said Steve DeAngelo, ArcView president and executive director of California’s Harborside Health Center, one of the nation’s largest medical marijuana dispensaries. “If the IRS continues to attempt to enforce 280E – it has already put many cannabis businesses out of businesses, and it could impact many more.”

Finding a suitable location has proven another challenge for marijuana businesses.        

Strict zoning laws on the local level have generated a lucrative real estate market for compliant locations. In pot hotspots such as Denver, real estate prices have risen to reflect the growing demand.

“There’s a joke in the marijuana industry that it’s a marijuana tax. As soon as you tell somebody you’re in the industry, you can pretty much guarantee your rent’s going to go upward of 3 percent,” Perino said.

A former commercial real estate broker, Matt Chapdelaine, co-founder of Chicago-based HerbFront, the United States’ first online cannabis real estate listing service, estimates the fair market price for marijuana-zoned properties at 150 percent of their typical market value. Only 1 to 2 percent of all properties in most areas work for marijuana, he said.

The online service uses mapping technology to pinpoint locations zoned for marijuana.

“There is an incredible need for this,” Chapdelaine said. “It can be really, really hard for someone to find a location that’s compliant.”

The marijuana businesses that go on to do well and look to expand are often hampered by a shortage of sources for funding. Some companies have turned to public offerings to build up capital, but reputable ones are few and far between, according to industry analysts and market research.

Most trade over the counter – where Securities and Exchange Commission filing requirements are few – in penny stocks that don’t hold much value. They go by pot-friendly calling cards like American Green and Medical Marijuana Inc., hoping to win over small-scale investors who don’t know any better, said Michael Swartz, an analyst with Viridian Capital, a marijuana-focused investment firm.

But to date, only one cannabis company trades on the Nasdaq, GW Pharmaceuticals, a British company that produces medical products from cannabis.

Many others are still full of over-valuations and empty promises of impossible returns, Swartz said – investor pitfalls waiting to happen.

“Do your homework,” the analyst said. “It's important in this industry to do your homework. There's an opportunity, but there are a lot of challenges and risks involved. The big thing is due diligence. Any investor should be doing due diligence, but it's especially important in the cannabis industry.”

Bigger players could uproot smaller businesses

The marijuana economy of today – full of mom-and-pop shops and small-scale investors – could look a lot different a few years from now.

Industry experts liken pot today to alcohol in its early post-Prohibition years, full of early adopters trying to corner their own slice of the market before the bigger players move in.

There are interests within more than a dozen states pushing legalization initiatives in the 2016 election. Though the majority haven’t yet gathered enough signatures to make it on the ballot – it’s still early – the industry expects more states to follow the lead of Alaska, Colorado, Oregon and Washington in legalizing marijuana. 

As the market continues to grow – ArcView projects a $10.8 billion legal sales market by 2019 – interest from bigger players may pick up.

“You're going to have mass production, and you're going to see that in cannabis,” Swartz said.

Now, banks and other larger companies are hesitant to enter, largely because marijuana remains illegal to the federal government, which allows the government to prosecute marijuana business, if it chooses to do so.

If the federal government does make marijuana legal, big changes are in store for the marijuana industry, said Dayton, the CEO of ArcView. He expects other highly regulated industries, like restaurant chains and food manufacturers, to snap up marijuana companies once it’s safer to do so.

“Think of the wine market,” he said. “Cannabis is just like that. Sure, there are the big producers, but there’s also the small and the medium size. You’re certainly going to see some consolidation.”

A battle over branding looms over cannabis, Swartz said. The industry is still in its infancy, too young to have the marijuana equivalents of the Apples and the Walmarts and the Coca-Colas. Especially with restrictions placed on advertising most everywhere, it’s too soon to tell which early starters will become go-to brands, but it looks to be a matter of time until consumer favorites emerge.

“It's going to be the brands,” Swartz said. “It's going to be the Bacardi, the Grey Goose. That's where you're going to see the biggest market. It's going to be about quality, but what's even more important is that brand.”

Without a solid and well-known speciality, mom and pop marijuana businesses will be swallowed up once bigger players move in, he said – it’s just a matter of time.

Clarissa Cooper is a Reynolds Fellow. 

Brad Zerman stands in front of his medical marijuana dispensary storefront in Oak Park, Illinois. The dispensary is set to open in late 2015.Michael Bodleyhttp://www.publicintegrity.org/authors/michael-bodleyClarissa Cooperhttp://www.publicintegrity.org/authors/clarissa-cooperhttp://www.publicintegrity.org/2015/08/18/17854/high-expectations-business-marijuana

Growers look for sustainability in resource heavy weed industry

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This project was produced by News21, a national investigative reporting project involving top college journalism students across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

Chuck Lyon lives in a house he built “one concrete slab at a time” in the hills of Humboldt County, California.

Lyon, 62, only uses about five gallons of well water each day, including the 1.5 gallons it takes for him to take what he called “navy showers.” The average American uses more than 16 times that amount each day, according to the U.S. Geological Survey.

And when it comes to irrigating his garden, which includes six marijuana plants just a few steps off the front porch of his home, he takes it a step further. Lyon captures about 60,000 gallons of rainwater in massive silos each year and uses that to water his cannabis.

“Without water, I’m nothing. Without water, this planet’s nothing,” said Lyon, who can legally grow medical marijuana under California’s system. “I don’t waste water. I don’t plunder water. To plunder water, that’s a crime against nature.”

Lyon grows his pot in the “Emerald Triangle,” one of the largest cannabis-producing regions in the country. Although Lyon tries to leave little impact, the area around him highlights some of marijuana’s negative effects on the environment. Marijuana can require massive amounts of water, and growers have often left behind toxic chemicals, trash and scars on the land. Growing indoors can use excessive amounts of energy, which costs large sums of money and eats up resources.

Twenty-three states and Washington, D.C., have approved marijuana for medical use, with Alaska, Colorado, Oregon, Washington and the District, legalizing recreational pot as well. At least a dozen other states may vote on legalization initiatives in the 2016 election.

Jesse Peters, owner of Eco Firma Farms near West Linn, Oregon, said the fears concerning the impact of the marijuana industry as it expands are fears any industry should address.

“Call centers need to be more sustainable. Mills need to be more sustainable. Cannabis farms needs to be more sustainable,” he said. “There’s more and more people being added to this planet. We’re putting more and more stress on the planet as a whole. We shouldn’t create any new industries to add to that stress.”

Water

Marijuana is a thirsty plant. A single plant needs up to 6 gallons of water every day.

That’s double the amount of water consumed by grape vines.  

California is an ideal location to grow both crops – its mild seasons make for lush outdoor grows. Because of these conditions, growers have flocked to the state, and the land has felt the effects.

A recent study by researchers from the California Department of Fish and Wildlife found each of four watersheds in northern California – an area within the Emerald Triangle – supplies water to between 23,000 and 32,000 marijuana plants. These grows deplete each watershed by anywhere from 138,000 to 192,000 gallons per day. Researchers collected this data by accompanying law enforcement on search warrants and site inspections.

Chris Van Hook spent more than two decades diving and farming abalone off the coast of Crescent City, California. He raised his children near the rivers that flow beneath the redwood canopy and has seen their flows diminish over the years.

All it takes is a drive along U.S. Route 101 to see that some areas of the rivers that run along it have pooled up and do not connect – there’s simply not enough water.

Lyon said he sees the destruction around him as well. Large-scale grows, the legality of which are unknown, surround his property.

“These million-dollar growers up here are using millions of gallons of water,” Lyon said. “They’re pumping directly out of the river. They’re pumping directly out of the springs.”

“Everybody thinks it’s somebody else. They think that their grow is conservative on water, and it’s somebody else that’s doing all the plundering of the water. We can’t look at it like that anymore. We’re all responsible whether we grow or not.”

Soil

Marijuana grow sites may harm surrounding habitats in other ways, too.  

Use of excessive pesticide, herbicide and rodenticide  – poison used to keep rodents away from plants – may have potentially lethal effects on wildlife.

Researchers have studied the impact of pesticides and rodenticides on wildlife, in particular the weasel-like fisher, in the Sierra National Forest along California’s eastern border.

The researchers found traces of rodenticides as well as pesticides in the soil and vegetation surrounding cultivation sites. They observed a correlation between these chemicals and the dwindling population of fishers, according to Mourad Gabriel, executive director and senior ecologist at the Integral Ecology Research Center. 

The researchers also discovered some owl species in the area were exposed to rodenticides, likely because of a diet heavily dependent on small mammals.

They found three out of four northern spotted owls and between 40 and 70 percent of barred owls were exposed – and those estimates may be conservative, according to Gabriel.

Illegal grow sites use multiple toxicants in large quantities to kill anything that might harm the crop, according to the study. Many illegal growers blatantly disregard regulations intended to protect sensitive habitats and lands.

These grow sites also have been associated with large amounts of trash and non-biodegradable waste.

According to the U.S. Forest Service, illegal growers “frequently damage soils, cut timber and clear vegetation to create room for their grows, creating resource damage and erosion problems.” The service estimated that in fiscal year 2014, 72 national forests across 21 states were home to illegal marijuana cultivation sites.

Chris Boehm, the assistant director of the service’s law enforcement and investigations, said more than 6,000 illegal cultivation sites have been raided in national forests since 2005. Ninety percent of those sites were in California.

In 2011, the Forest Service cleared out and restored 335 illegal cultivation sites in California alone, according to David Ferrell, the director of law enforcement. During the clean up, workers removed more than 130 tons of trash as well as 300 pounds of pesticides and 5 tons of fertilizer.

Because of such waste, Ferrell deemed the illegal cultivation of marijuana “a clear and present danger to the public and the environment.”

Energy

Indoor grows have different needs from those outside, and those needs come with costs of their own. They may use less water, but indoor grows use a tremendous amount of energy. 

Indoor cultivators typically use LED or HPS – high-pressure sodium – lights to provide the energy plants would naturally obtain from the sun.

One study comparing these high-efficiency lights found that both types were equally efficient.

Several websites offering tips for indoor growing suggested the more light, the better: “The more light you give your cannabis plants, the faster and larger they will grow,” according to The Weed Scene.

According to some estimates, a typical grow house uses 200 watts per square foot – about the same amount of energy it takes to power a modern data center.

This usage is compounded over time. The average marijuana plant takes between three and four months to grow, and some can take even longer depending on the strain and the conditions it’s kept under. When growers want their plants’ growth rate to accelerate, they may keep the plants under 24-hour light.

In fact, energy costs can account for nearly a quarter of the total cost consumers pay for usable marijuana, according to Evan Mills, an energy and environmental systems analyst with the Lawrence Berkeley National Laboratory.

Mills also estimated supporting just four plants indoors could require as much electricity as 30 refrigerators.

The Future

Chuck Lyon said some people are trying to do better.

He said he sees more water collection tanks along the highway than ever before. Some growers are reconsidering how they cultivate, moving indoor grows outdoors, where the sun provides the energy plants need.

“I think it’s too little too late, but I do have to recognize that there are people who are trying to change,” Lyon said.

He’s even changed his own outlook on marijuana.

Lyon said he used to cultivate 129 marijuana plants, which consumed every drop of the 60,000 gallons his rainwater tanks collect. He reduced his crop, though, and now grows fewer than the number of mature plants allowed by law. 

He installed solar panels to provide the energy needed to move the rainwater uphill to his storage tanks. He uses ground-up coconut fibers as organic fertilizer.

But some consumers now demand earth-friendly products, and marijuana cultivators are responding.  

Because the federal government does not recognize marijuana as a legal crop, it cannot receive the U.S. Department of Agriculture’s organic label, and therefore, isn’t regulated to the same environmental standards as other major crops.

When Chris Van Hook’s abalone farming days ended in 2012, he used his environmental background and a newly acquired law degree to develop an organic certification for marijuana plants.

He claims he loosely based his “Clean Green” recognition on the USDA’s organic certification. It’s difficult for growers to gain Van Hook’s certification, though, because it requires growers to not only limit pesticide use on their plants but also to prove they get resources legally.

“In 2015, we’ve actually been turning down more applicants than we ever have before because of the drought in the West and in California, in particular,” Van Hook said.

Patrick Rooney, a grower and part owner of Vashon Velvet – on Vashon Island, Washington – said energy has been a central focus of keeping his indoor grow “thoughtful” in terms of its impact. He described the business as a “sustainable artisan marijuana farm.”

Rooney and his partners use about 55 energy-saving LED lights rather than high-wattage lights, which also produce heat. By using LED lights, Rooney not only conserves energy, but he reduces the costs associated with cooling down an overheated space.

As more people join the marijuana industry, Rooney said there is cause for concern: More growers means higher energy consumption for cultivation.

“Cannabis is an aggressive indoor plant,” he said. “(It) needs a lot of light, a lot of nutrients.”

But as consumers become more aware of where their marijuana comes from and the footprint it leaves behind, he expects them to seek out smaller, more sustainable grows.

“We go for quality over quantity here,” he said. “And I think we’re able to do that because we’re focusing so much on the environmental impact of what we’re doing.”

Jesse Peters of Eco Firma Farms has taken a different approach to sustainable energy.

Eco Firma Farms exclusively uses wind turbines to meet its energy needs, and it is moving toward being a carbon-neutral operation from beginning to end, he said.

“We’re trying to keep a sustainable method here at this farm and set an example,” Peters said, “so that we can flourish as an industry without being too hard on the environment.”

As for the growers trying to do things right, Lyon said, “We’re not criminals. We’re not outlaws. We’re not dangerous. We’re just country people. I’m just an old man on a mountain with an old dog.”

News21 journalists Kathryn Boyd-Batstone, Brittan Jenkins and Matias J. Ocner contributed to this articleJenkins is an Ethics and Excellence in Journalism Foundation Fellow. Ocner is a Knight Foundation Fellow. Dom DiFurio is a Reynolds Fellow.

The burgeoning marijuana industry is raising environmental concerns by some growers in California, particularly among water conservationists because a typical marijuana plant can consume up to 6 gallons of water per day.Katie Campbellhttp://www.publicintegrity.org/authors/katie-campbellDom DiFuriohttp://www.publicintegrity.org/authors/dom-difuriohttp://www.publicintegrity.org/2015/08/19/17868/growers-look-sustainability-resource-heavy-weed-industry
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