https://insideclimatenews.org/news/24102019/exxon-oil-spill-neighborhood-mayflower-arkansas-sealed-depositions-illnesses-fines
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6 Years After Exxon's Oil Pipeline Burst in an Arkansas Town, a Final
Accounting
In sealed depositions, Mayflower residents describe illnesses, property
damage and a smell that still haunts them. Some say they felt pressured
to sign settlements.
By David Hasemyer
Oct 24, 2019
Melissa Hays never would have remembered the day of her humdrum outing
at Harp's, a neighborhood grocery store in her hometown of Mayflower,
Arkansas, had she not suddenly been overwhelmed by the noxious, chemical
smell of oil.
It was March 29, 2013. Few in Mayflower will ever forget it. As Hays ran
her errands, ExxonMobil's Pegasus pipeline, which ran beneath this small
town, burst without warning along a defective 22-foot seam, spewing
210,000 gallons of heavy Canadian crude oil diluted with large
quantities of harmful solvents onto quiet residential streets.
Hundreds of people in this working class community of about 2,000 near
Little Rock reported being sickened by an odor that was almost thick
enough to feel. Residents soon began to complain about grinding
headaches, diarrhea, swollen eyes, dry heaves and burning lungs.
"I started feeling kind of sick," Hays said later in a deposition as one
of the lead plaintiffs in a class action lawsuit against Exxon alleging
negligence in its maintenance of the 69-year-old oil artery. "And I just
couldn't tolerate the smell."
The smell got into her house, she said, and for a year she couldn't
shake a malaise triggered by coughing, congestion and migraines. "I was
just constantly sick," she said.
Hays is among more than two dozen Mayflower residents who described
their symptoms and their anxiety in depositions that were sealed as part
of a 2017 settlement with Exxon but obtained by InsideClimate News.
The depositions, along with other court documents, provide the most
complete account to date of the health impacts of the oil spill, which
in some respects has remained shrouded in secrecy because the federal
agency in charge of pipeline oversight restricted the public's access to
the information, and because of the confidentiality agreements Exxon
demanded in exchange for the settlements.
An environmental consultant hired by the plaintiffs' lawyers, whose
report is part of the court file, concluded that those nearby residents
faced "significant risks" after being exposed to a cocktail of
chemicals, including benzene, a known carcinogen; cyclohexane;
naphthalene; and toluene. His findings have not previously been reported.
The chemicals he cited had been used to dilute the heavy crude extracted
from the tar sands fields of Alberta that leaked from the ruptured
Pegasus pipeline, according to court documents. The consultant faulted
Exxon for limited air sampling after the spill and for using the wrong
health risk standard for assessing potential damage.
Despite the confidentiality agreements, several plaintiffs said that
compensation ranged from $2,000 to $15,000, depending on the proximity
of the residents to the oil spill.
Michael Barnes, one of the attorneys representing Exxon, declined to
comment and referred questions to the company's media relations arm.
Exxon spokesman Jeremy Eikenberry did not address specific questions
regarding the settlements, saying only that "all civil cases have been
settled or otherwise resolved."
Exxon's extensive holdings of crude extracted from the Alberta tar sands
are at the center of a trial that began Tuesday in which the New York
Attorney General has alleged that the company misled investors by
minimizing the costs and risks associated with its tar sands projects,
among the most expensive and carbon-polluting sources of oil on the planet.
Public access to both the sealed depositions and to the more extensive
health record from the Pegasus spill in Mayflower are critical as tar
sands oil becomes more prevalent among the U.S. energy mix, including in
the fuels sold by Exxon. The oil flows from Canada to the U.S. through
the Keystone XL, Trans Mountain and the Enbridge pipeline system, among
others, which have the capacity to carry hundreds of thousands of
gallons annually. All told, there are more than 200,000 miles of oil
pipelines crisscrossing the United States, including aging conduits,
like Pegasus, that have been in the ground for more than 50 years and
account for nearly half of the pipelines in operation.
In the Arkansas civil action stemming from the Pegasus spill—three
separate actions were merged into a single class-action
lawsuit—plaintiffs alleged that Exxon failed to properly maintain the
pipeline and that residents were exposed to toxic chemicals in the tar
sand oil that were known to cause severe health problems.
"The hazardous and toxic nature of the heavy Canadian crude oil and
liquid hydrocarbons diluting the tar sands resulted in direct air
quality contamination after the oil spill, personal and real property
and water contamination," according to the 2014 lawsuit filed in the
Faulkner County Circuit Court in Arkansas.
Exxon denied that it failed to properly maintain the pipeline and
contended the oil that spilled was nothing more than "conventional"
heavy crude oil, saying the term tar sands is a colloquial definition
open to "varying understandings."
"ExxonMobil is not liable for the plaintiffs alleged injuries or damages
because the applicable entities acted in conformity with generally
recognized, state-of-the-art standards in the industry," Exxon's
response said.
'No Going Up Against Exxon'
While the spill in Mayflower was subject to extensive media coverage at
the time, the full extent of both the plaintiffs' health issues and a
five-year battle to obtain records related to the spill from the federal
Pipeline and Hazardous Materials Safety Administration (PHMSA), have
only come fully into focus now. The regulatory agency formally closed
the Pegasus case in August after Exxon had paid a $1 million fine two
years earlier for failing to adequately maintain the pipeline.
The Pipeline Safety Trust, a non-profit watchdog group, began the
five-year fight for information in 2014 about the Pegasus pipeline spill
after PHMSA denied a reporter from InsideClimate News access to
disciplinary hearings on the incident. The trust ultimately obtained a
transcript of the hearing and some regulatory documents, but it was
denied many others on grounds that they involved Exxon trade secrets and
were not subject to release.
"The lack of transparency creates distrust in the system on the part of
the public," the trust's Rebecca Craven said in an interview, "whether
that distrust is warranted or not."
Paul Byrd, one of the attorneys who represented the Mayflower families,
is now prohibited by a protective order from discussing any aspect of
the case or settlement, which he compared, for some billion dollar
companies, to buying a cup of coffee. "Do the math," he said, explaining
that his clients were the ones who decided to settle in the end.
As in virtually all cases in which plaintiffs claim to have suffered
adverse health effects from pollution, causality is extremely difficult
to prove. "Exxon would say you can't prove anything," he said. "But that
misses the point. Your spill caused that worry, a worry they didn't have
before the spill. It's what these people were living with, and will
continue to live with."
Kimla Greene said the settlement was forced on her and other plaintiffs
and tilted in Exxon's favor because of the company's threat to drag out
litigation until the resources of the residents and their attorneys were
exhausted, a hardball tactic she said was part of Exxon's legal strategy.
"Exxon took advantage of hard working, everyday people who wanted to
have a home," said Green, who said her settlement was in the
neighborhood of $10,000. "'Here's your offer. Take it or leave it and if
you don't we'll tie you up in litigation for the rest of your lives.'
There was no going up against Exxon."
"I'm still living life captive to this spill," she said.
Marsha Cochran is done with the whole ugly thing. Although she declined
to say exactly how much she received as part of the settlement, she said
that it fell short of compensating for the misery and worry caused by
the spill.
"They (Exxon) got off easy," she said in a telephone interview. "Let's
say it was the least they could get away with."
Cochran moved away from the neighborhood within a year of the spill.
"I left it all behind," she said. "It's done and over with."
Sealed Depositions Describe Depth of Health Concerns
In hundreds of pages of depositions now sealed as part of the settlement
with Exxon, more than two dozen Mayflower residents describe what they
considered serious physical and mental harm suffered as a result of the
oil spill.
Sitting around conference tables in pristine legal offices, miles from
their sullied neighborhood, residents told of tossing out furniture and
ripping up carpets that had become hopelessly steeped with the stench of
oil. They told of the unexplained death of pets. They said they became
afraid to even take walks through their neighborhood.
Melissa Hays, the woman overwhelmed by the smell of oil as she shopped
in her neighborhood grocery store, said she threw up immediately after
the spill and experienced nausea, dizziness, migraines, depression and
anxiety. Asked during her deposition whether she still felt she was
suffering from the spill, Hayes, now 39, replied: "I'm still dealing
with migraines and it's just not going away at all. ... Because I
started getting them after this oil spill and it hadn't gone away."
Hays, who has struggled with anxiety since high school, said she her
mental and emotional health has suffered dramatically since the spill.
"I just feel more depressed since this happened," she said. "I can't
handle the pressure."
The spill ruined the character of her neighborhood, she said, assailing
what once was her domestic comfort zone.
"It's not like—the same like it used to be," she said.
Christian Alexander, a 49-year-old immigrant from Nigeria, complained
in his deposition of frequent nose bleeds. He'd never, in his life, had
one before the spill. "But I've been having a lot of nose bleeds," he said.
Kenneth Hobby, 33, said he and his wife had blinding migraines after the
spill and worried enough about the possible health effects to consult a
fertility specialist a couple of years after the spill.
Tyler Bates said he and his pregnant wife and their two kids all
experienced headaches, nausea and diarrhea after the spill—and Bates
himself went to the emergency room at one point for a panic attack.
Connie West reported the smell was "really bad" and said she became
immediately queasy and nauseous, and suffered headaches for months.
Years after the spill she told Exxon lawyers she remained fearful.
"They are chemicals," she said during a deposition. "You breathe it in.
You don't know what the long-term effects (are) going to be. You worry
about cancer."
Wilma Subra, an environmental consultant who specializes in working with
communities impacted by oil spills, said in an interview with
InsideClimate News that the physical disorders experienced by Mayflower
residents are typical in people who have been exposed to the kinds of
chemicals in the oil that spilled.
"As soon as you are exposed you are start developing these symptoms,"
Subra said. "It's not unusual that you hear these kinds of complaints."
In some cases the conditions can linger "for a long time" and can become
chronic even after a person is no longer exposed, she said.
There is also the worry that exposure to these chemicals can lead to
cancer and some organ damage, Subra said.
"It's just not healthy to have exposure to these chemicals," she said.
Exxon Never Fully Assessed Magnitude of Environmental Hazard
The tar sands oil that flowed down the streets of Mayflower is also
called bitumen. To get it through pipelines, the chemical solvents thin
it into what's known as dilbit, short for diluted bitumen.
The environmental consultant hired by the plaintiff's lawyers, Frank M.
Parker, a Texas-based industrial hygiene expert, assessed the potential
harm posed by numerous chemicals to the residents of Mayflower on the
day of the spill and in the weeks that followed, as workmen did their
best to contain the oil and remove as much of it as possible. In all, 26
volatile and semi-volatile chemicals were detected.
"Their exposures were to a mixture of chemicals, which when combined
most likely exceeded the threshold concentration necessary to put them
at significant risk of developing at least some of the acute symptoms,"
Parker concluded.
The exposure didn't stop with the spill. It likely continued for some
time and spread even further during the clean-up, Parker said in a 2017
report prepared for attorneys representing the residents.
"Workers and equipment also most likely generated vapors, aerosols
and/or contaminated particulate matter wherever the 'crude' oil was
disturbed," according to the report. "Aerosols and particulates are of
special concern as they will travel long distances from their [point of
origin]."
In his report, Parker also faulted Exxon for its limited air sampling in
the neighborhood—testing that focused almost exclusively on benzene with
the exclusion of other chemicals that may have been responsible for many
of the symptoms reported by residents.
In addition to sampling for the wrong chemicals, Exxon applied the wrong
health risk standards, Parker wrote.
Exxon compared sample results to permissible exposure limits established
by the federal Occupational Safety and Health Administration (OSHA).
"These are occupational exposure standards and are not applicable to the
general public," the report said. "These standards assume that only
healthy adult workers will be exposed to these hazardous materials at
these concentrations. They do not take into consideration the young, the
old, the sensitized and/or, the infirm which are commonly found in the
general population most likely here by plaintiffs and their families."
The OSHA standards also account for eight-hour exposure times coinciding
with working hours and not the round-the-clock exposure Mayflower
residents experienced.
Parker told attorneys that it would have been more accurate to employ an
exposure matrix designed for the general public that was developed by
the U.S. Department of Health and Human Services Agency's Toxic
Substances and Disease Registry.
Applying those guidelines instead of the OSHA standards suggest
Mayflower residents were at "significant risk."
"When you add the fact that the plaintiffs were most likely exposed to a
mixture of ... chemicals, aerosols, and contaminated particulates the
risks are increased even more," according to Parker's report.
Parker also faulted Exxon for its misleading public statements made in
newsletters published by the company that did not accurately reflect the
danger faced by residents because of the inadequate monitoring and risk
assessments.
"The ExxonMobil Newsletters consistently report that air monitoring in
the Mayflower community 'show levels that are non-detect or that are
below any necessary action levels,'" the report said.
The reality is Exxon had no idea what cumulative effect of all the
chemicals had on the residents of Mayflower, Parker said in an interview
with InsideClimate News.
Air sampling by Exxon's paid environmental consultants showed levels of
individual chemicals were below the federal safety standards. But that
is parsing the results in Exxon's favor, Parker said in an interview.
"Not taking into account the cumulative effect of all the chemicals is a
big problem," he said. "That's the real world of what these folks were
exposed to.
"When you consider the risk criteria for each chemical alone, the bottom
line is you are under estimating the risk that comes from the cumulative
effects of exposure to all these chemicals."
Jason Thompson didn't know the danger posed by the toxic crude at the
time, and Exxon never told him or his fiancée or his neighbors.
"They looked at Mayflower as some Podunk town," he said in an interview
with InsideClimate News. "They saw us as dispensable."
"They lied to my face. The residents needed to know the truth. If there
are chemicals in the air tell us so we can get the hell away from it,"
he said.
He moved away seven months after the spill, but the legal fight with
Exxon went on for another four years. His cut of the settlement was
$4,000, a sum arrived at because no oil touched his property.
"I got my settlement and they think I'm done," he said. "But as far as
I'm concerned, I'll never be done with it."
Aspects of This Spill Will Never Be Known
The Pegasus spill spawned a five-year fight for disclosure and
transparency by the Pipeline Safety Trust, a non-profit, non-partisan
watchdog group.
The genesis for the trust's interest came about when a reporter from
InsideClimate News was denied access to PHMSA disciplinary hearings in
2014 on allegations that the company delayed crucial inspections and
ignored warning signs before the pipeline burst.
That prompted the trust to file an extensive Federal Freedom of
Information Act request with PHMSA in 2014 for records associated with
the federal agency's investigation of the spill. The trust sought
records related to the agency's investigation of Exxon and those
shedding light on the closed door disciplinary hearing. In essence, it
wanted a transparent accounting of how Exxon explained the spill, what
PHMSA concluded happened and how the federal agency reached its final
disciplinary decision.
In 2015, two years after the spill, Exxon was hit with a $2.6 million
fine and was harshly criticized by the Pipeline and Hazardous Materials
Administration (PHMSA) for inadequately maintaining the Pegasus
pipeline. Federal regulators also faulted the company for its failure to
spot warning signs that the aging pipeline had structural defects that
led to the rupture.
Among the nine safety violations cited by regulators was Exxon's failure
to assess the integrity of the pipeline even though the company knew of
risks that included cracking along its lengthwise seams. The company
also did not meet deadlines to conduct required regular safety tests and
failed to prioritize testing the section of pipeline that ruptured,
according to the order.
Exxon appealed the findings. And in 2017, a federal court overturned the
violations and dismissed $1.6 million of the fine after the company
argued there was no proof its conduct contributed to the spill. The
court agreed, saying the company met its legal obligation when it
"conducted a lengthy, repeated and in-depth analysis" of the pipeline
and its risks.
Beyond settling with the Mayflower residents, Exxon has also reached
settlements to resolve environmental damage. Exxon agreed to pay $3.19
million in federal civil penalties for Clean Water Act violations, $1
million in state civil penalties for state water and pollution
violations, $600,000 for a project to improve water quality at Lake
Conway and $280,000 to the Arkansas Attorney General's Office for
litigation costs.
Still, secrecy prevailed around numerous aspects of the Pegasus spill,
as the Pipeline Safety Trust engaged in what it saw as a highly
frustrating battle with PHMSA and Exxon.
During the five-year effort to pry open the box of secrecy surrounding
the Pegasus spill, the trust's Rebecca Craven encountered multiple
denials for records by PHMSA, coordination between the federal agency
and Exxon on whether certain records should be released, and
unsatisfactory explanations for the secrecy.
The public should know what happens in enforcement hearings and what
information is exchanged between PHMSA and the pipeline operator, along
with legal arguments being made by the operators and PHMSA's attorneys,
Craven said.
"Without access to the hearings and documents, the public can't know why
the agency may dismiss certain violations or lower penalties or what
safety information the operator may have provided," she said.
The most enlightening information wrenched from PHMSA was a transcript
of the closed enforcement hearing, Craven said.
"I think the release of the transcript makes clear that in a lot of
cases, if not all of them, there's no reason the hearings shouldn't be
open and subject to public notice," she said.
PHMSA spokesman Darius Kirkwood explained a number of caveats that
restrict public access, including closing portions of hearings when a
pipeline operator objects that public disclosure of information would
mean revealing trade secrets.
After being notified of the Pipeline Safety Trust's request for records,
Exxon responded by asserting the records should remain confidential
because of the trade secrets exemption and because the company was still
embroiled in litigation related to the spill, citing an exemption based
on the premise that the company could be deprived of a fair and
impartial adjudication of the pending legal action if the records were
made public.
"The response is clearly an attempt to prevent disclosure of any records
at all relating to the Pegasus pipeline, its failure and the enforcement
action brought by PHMSA," Craven told federal regulators.
The struggle for transparency ended earlier this year with a curt
statement from an agency FOIA officer that PHMSA had concluded its
response, citing the release of 708 pages of documents along with a slew
of final denials.
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