The Brockovich Report

It looks like I may be paying a visit to Tennessee. Numerous residents have asked me to come to the community for a meeting on the coal fly ash disaster around Knoxville, and I think I will be going.

I know the question on everyone's lips. What is coal fly ash, and why does it need to be contained? The folks around Knoxville are getting to know a lot more about coal fly ash than they ever wanted to learn.

Coal fly ash. It sounds like someone has been burning fly poop or airborne coal. But seriously, it is akin to the creosote that coated those chimneys and chimneysweep boys of Charles Dickens ancient London.

Fly ash comes from chimneys, specifically the chimneys of power plants. The collection point determines exactly what kind of ash it is. Fly ash apparently contains silicon dioxide and calcium oxide as well as trace concentrations of heavy metals. In other words, coal ash is nasty stuff to have floating around in your river, air, and drinking water.

Anyway, thanks to the failure of a containment retention wall at TVA's Kingston Fossil Plant that's where it is. In the river. Spread out on the land.

The Clinch and Tennessee Rivers are affected. So the TVA is out there collecting "cenospheres." Cenospheres are apparently little floating balls of residue which according to this TVA publication "are useful in bowling balls, paint, concrete and epoxy" --just a partial list of ways fly ash in general is used. There are 3000 feet of skimmers in place to vacuum up this stuff and some other collection devices in the water. I don't think the sludge is only made up of cenospheres, so I wonder what they're doing to control the rest of it.

The TVA publishes data on Kingston's Fossil Emissions and water data .

The TVA does NOT publish data about that retention wall. (Or maybe they do, and I just don't know where it is. The TVA is welcome to let me know that information.) So I'd like to know why they were using retention ponds to store this stuff. (You may remember I have a history with retention ponds. Don't like 'em. Never will.)

Why does it need to be contained? Well, that's a moot point, isn't it? Since it is composed of heavy metals, and other nasty things. It is better contained than it is spread out over 300 acres thirty some-odd miles away from Knoxville. Truth is, I should speculate on some other questions. Like...

Why was that fly ash sitting around a retention pond rather than being immediately ported to some Portland Cement factory, or bowling ball maker? Was there some earthquake we don't know about? Why did the retention wall give way? How much trace metal is realistically dangerous, and how much trace metal and toxin is really there? Is it truly inert?

AP has already released an article talking about how the TVA won't have retention ponds on TVA property any longer. Better late than never, I suppose. (Does that mean It's moving to private property, that it's going to be sold or that they're shooting it to trash cans on Jupiter or Pluto?) We'll have to see what their actual solution is, and if it really is an improvement over what they're doing now.

A dozen families have lost their homes to 2.6 million cubic yards of fly ash. OR a Billion cubic yards. (The numbers change depending on whose saying them.) Three hundred acres are destroyed. In fact, that number has grown to four hundred acres six feet deep.

Why is it that it takes a disaster to find the better way to do things? When are we ever going to learn to use forethought instead of hindsight?

As familiar to us as the backs of our own hands, the little main street square lives in our minds as concretely as if we walked those streets, and jumped over the actual cracks not to break our mother's backs; you know, that cozy town square and all the homey penny candy dispensing shopkeepers who know our names--straight out of the collective unconscious--or some James Stewart/Frank Capra common mythos. But that's not really main street these days. Main street has gone the way of wall street--lost to power mongers who follow the path of corruption, otherwise know as corporate sleight of hand. All around us, the big packagers, the huge corporations are shutting down branches, laying off people, and the empty buildings stare at us through their empty-window eyes, making a mockery of yesterday's affluence. In many areas of the country, formerly thriving economic retail centers are starting to look like the abandoned tenements of Urban blight. And it is spreading.

How many power brokers are like Fred Smith of Federal Express, taking a personal 20 percent pay cut and freezing wages rather than putting hundreds--perhaps thousands--out of jobs?

No, it looks like most power brokers these days take multi-million dollar bonuses seconds before their corporations are liquidated, tossing millions of people out of work, out of savings, out of pensions.

What is happening to wall street and main street is happening to the environment.

Abandoned by the corporations who caused them, abandoned environmental hot spots are collected under the Superfundumbrella, with the optimistic mission "to clean up the nation's uncontrolled hazardous waste sites. . . . ensuring that remaining National Priorities list of hazardous waste sites are cleaned up to protect the environment and the health of all Americans."

It looks like Obama has plans to make a few changes. Obama named Harvard physicist John Holden as Director of the White House Office of Science and Technology policy, and Marine Biologist Jane Lubchenco as National Oceanic Atmospheric Administrator. And also he's engaged other scientific leaders like Nobel Prize-winning scientist Harold Varmus, former director of the National Institutes of Health; and Massachusetts Institute of Technology professor Eric Lander. These are leading thinkers of the green movement. Let's hope they can live up to their reputations.

It's a start.

I hope when Obama met with Al Gore and talked about global warming that they talked about how to clean up all the contamination. We are committing our own genocide and don't even seem to care. Does anyone care? How do I get someone's attention here? How do we get these sites cleaned up?

I don't really mind that the old town square is fondly remembered anachronism. There's a long history: the Roman Forum; the Italian Piazza; the French Grand-Place. Somewhere, sometime, towns and their squares will be rebuilt and be vital and live again. And if not, well, town gathering places are bound to grow and evolve just as people grow and evolve. I only hope that other things that we hold dear--like clean water, clean air, unimproved land in its natural state--will not become fondly remembered relics of the past.

I'm going out on a limb to make an analogy here. It's not going out on a limb because it's dangerous. It's going out on a limb because I'm not a lawyer, and only lawyers can make official "pronouncements" about law. But we're all entitled to our opinions.

So here is one more opinion. (Believe me, I have a lot of them. ) There are a couple of ways that building a lawsuit is like building a house. I'm just going to mention two: it has to rest on a solid foundation and it takes lots of hands.

The foundation part makes basic sense. You have to have a case. There has to be some tangible thing that happened. If something might have happened, or it is just hearsay or gossip, there's no case. If you heard it happened, or your friend said it happened to him, there's no case. Or--you won't believe what happened to my cousin's niece's next door neighbor's roommates in-laws. Plenty of those come thru my mailbox--where something might have happened, but we're not exactly sure what.

Let me invent an imaginary case here: The sun rose, and you got out in it and got a sunburn--you can't sue the sun. Now, if you slathered yourself with a sunscreen and the person next to you didn't use a sunscreen, and you're burned worse and now you have malignant melanomas...then maybe you've got something. In either case, you're not suing the sun. Your suing the ones at fault--maybe some crook down the road who sold the sunscreen maker baby oil but claimed it was paba. It's still going to be hard to prove because that melanoma could have had a gazillion other causes. And you still have to prove it and look for the deceit, to connect the dots. But if it is an event that clearly happened to you, that's a foundation.

You can't build a case if the foundation is jello.

Now...about a case needing about a lot of hands. There is usually a lot of people involved in a case. Sometimes there are lots of people to interview. Sometimes there are intermediaries. Even the intermediaries have intermediaries. Sometimes a lot of people have been affected, and they all need to be heard. Sometimes there is some kind of cover-up and it doesn't show up until you've talked to a couple hundred--or a couple thousand--people. (If it's a corporate cover up, there can be a lot of payrolled people aware that something fishy is going on.) Every single person who helps ferret out the deceit is part of the solution. And with all of these people involved, you really do need people skills. It helps to genuinely like people.

Ever since it came out, I've gotten mail from law professors and students who use "Erin Brockovich" the movie as part of some legal learning experience. In fact, right now I have an email from the Deputy General Counsel for the Office of the Comptroller in Massachusetts who also teaches 1st year legal research, who is saying that "I use the movie Erin Brockovich as a teaching tool, to demonstrate that being able to connect with people is more effective than legal skills."

I am flattered that the movie is being used that way. And maybe it is a good thing.

In the course of getting justice done, there are lots of people involved. The law is all about people. Sometimes the legal system and lawyers seem to forget that. The law is not just a bunch of rules. The law is rules whose intent (is supposed to be) helping civilization be fair and reasonable. It's not a civilization of Martians we're talking about, nor robots; it's people.

Lawyers tend to get very compulsive and nit-picky when it comes down to looking at details in legal gobbledygook which is what they do. They're very good at arguing the fine points or putting on their close-up glasses and decoding all that fine print the rest of us skip over. But a lot of the time, lawyers don't deal well one-on-one with the people they have to interview, or the very people who have hired them. They have to take off those close-up and impersonal glasses to deal with the people.

Maybe being a lawyer is just one of those professions where the meat of the job gets in the way of the meaning. Like when you go to a doctor's office, and the doctor--who may be quite excellent at medicine--is terse and rushed and you're in and out the door with a diagnosis without feeling you've ever actually been doctored.

Now, I'm not chewing out doctors here, I've had some very kind doctors who relate well. I've had some who don't. I've known some really fine lawyers who relate well. I've known some who don't.

I'm just glad that someone engaged in the profession of teaching lawyers how to be lawyers is taking the time to remind them that they need to be people too.