Muscatine residents will get day in court against major air polluter

The Iowa Supreme Court ruled unanimously on Friday that a District Court should hear a lawsuit eight Muscatine residents have filed against the Grain Processing Corporation. Muscatine locals have long had to breathe some of Iowa’s dirtiest air, and the Grain Processing Corporation has long been one of the area’s major polluters. Despite being forced to pay a $538,000 civil penalty for air pollution violations eight years ago, the corporation continued to emit excessive amounts, leading to a lawsuit by Iowa Attorney General Tom Miller in 2011. Earlier this year, the company settled that lawsuit, agreeing to pay a $1.5 million civil penalty and to take several steps to reduce toxic emissions from the facility.

But the Grain Processing Corporation stood and fought when local residents filed a class-action lawsuit two years ago, citing health risks as well as damage to personal property related to the air pollution near the plant.

In 2013, a District Court judge granted the defendant’s motion to dismiss the case, prompting plaintiffs to appeal. The Iowa Supreme Court found that the Grain Processing Corporation “was not entitled to summary judgment” and sent the case back to District Court, which will consider the lawsuit on its merits. You can read the full text of Justice Brent Appel’s ruling here (pdf). (It’s more than 60 pages long and gets into some technical legal issues.) All the other Iowa Superme Court justices concurred, except for Justice Edward Mansfield, who recused himself because some of his former law partners were representing the corporation.

After the jump I’ve posted more background on the lawsuit and excerpts from Jason Liegois’ report for the Muscatine Journal on the Iowa Supreme Court ruling. The plaintiffs are not guaranteed to succeed in District Court, but at least they can present their case. In addition to fighting the lawsuit at the lower court level in Iowa, the Grain Processing Corporation could appeal to the U.S. Supreme Court, arguing that the federal Clean Air Act preempts claims like the ones the Muscatine residents are making.

The Muscatine Journal uploaded the original court filing here. The press release announcing the lawsuit summarizes the basis for the plaintiffs’ case.

The Buzbee Law Firm

March 23, 2012

Lawsuit: Grain Processing Corp. Pollution Allegedly Risks Residents’ Health, Damages Local Property Values

MUSCATINE, Iowa – Hazardous chemical releases by Grain Processing Corp.’s Muscatine, Iowa facility expose nearby residents to dangerous levels of pollution, damage property, and diminish area property values, a class action lawsuit filed today in Iowa state court alleges.

Filed against GPC, the lawsuit alleges that GPC’s “corn wet milling” processes in the production of corn-based products emit harmful chemicals, coal pollution, and vented volatile organic compounds. The lawsuit alleges that recent scientific testing of the air in Muscatine confirms potential health risks, and that the pollutants are damaging real and personal property in the area.

According to the lawsuit, “Once in the air, the polluting chemicals and particles are blown from the facility onto nearby homes, schools, and churches. Particulate matter, in the form of soot or smoke, is visibly left on, and in, these structures. Also present, but unseen, are the various chemicals intentionally released by Defendants.”

The named plaintiffs are Laurie Freeman, Joseph Preston, Sharon Mockmore, Eugene W. Mockmore, Beccy Boysel, Gary D. Boysel, Daryle Snyder, Linda L. Goreham, Gary R. Goreham, Kelcey Brackett, and Bobbie Lynn Weatherman.

The property owners are represented by Tony Buzbee, of The Buzbee Law Firm, of Houston, and James C. Larew, of the Larew Law Office, of Iowa City; and Andrew L. Hope, of the Hope Law Firm, P.L.C., of Des Moines.

The legal team will seek to have the case certified as a class action to include property owners within three miles of the GPC Muscatine facility GPC facility at 1600 Oregon Street – or about 6,500 households of 17,000 individuals living within this radius.

GPC has violated the federal Clean Air Act in all 12 of the last 12 quarters, according to the lawsuit. In the past five quarters, the U.S. Environmental Protection Agency has designated GPC as a “High Priority Violator” under the Clean Air Act. In the past two years, the Muscatine facility has failed stack tests on multiple occasions for total particulates. According to the EPA Toxic Release Inventory, Muscatine schools were the eighth worst in the nation in regards to pollution.

According to the lawsuit, “Defendants refuse to limit or restrict these releases and continue to use outdated technology while increasing production. The frequency and volume of these releases continue to grow.”

Tony Buzbee, of The Buzbee Law Firm, said, “Our legal team is focused on obtaining fair compensation for property damages and adverse health affects suffered by our clients in Muscatine. While GPC is an important institution in Muscatine, its plant is a serial polluter that puts local citizens’ health and property at risk.”

James C. Larew, of the Larew Law Office, said, “Scientific testing conducted at homes and public parks near GPC’s Muscatine plant confirms negative impact of the pollution. Testing of multiple air samples revealed a dangerously high level of acetaldehyde in the ambient air in Muscatine.”

Andrew L. Hope, of The Hope Law Firm, said, “Technology is available that would eliminate or drastically reduce the adverse affects of the GPC pollution. We hope the litigation will convince GPC to implement pollution-abating technologies for the good of the community.”

The case is “Laurie Freeman, et al., v. Grain Processing Corporation,” in the Iowa District Court for Muscatine County.

For more information, affected Muscatine residents are welcome to call 563.263.0636 for a free legal consultation or go online at www.muscatinepollutionlawsuit.com

From Mike Ferguson’s report for the Muscatine Journal on District Court Judge Mark Smith’s April 2013 decision to dismiss the case:

Smith included in his ruling a description from an expert hired by the plaintiffs. The expert labeled the company’s compliance with air-quality standards “poor” because GPC hadn’t invested in modern pollution controls, failed to control spills and leaks, bypassed pollution controls and discharged toxic chemicals uncontrolled into the atmosphere.

“If half the expert’s findings are true, there has been blatant disregard for the environment and the community of Muscatine,” Smith wrote in his decision. “The report also indicates that the above deficiencies have gotten worse in 2012, which is after the civil action was filed by the (Iowa Department of Natural Resources).”

But questions about what harm a company may have done require a balancing act, the judge noted.

“When an individual’s rights to seek damages for economic or physical harm conflict with the economic well-being of a large local employer,” Smith wrote, “those rights must be carefully weighed and reconciled through political compromises achieved by the legislative and rule-making processes.”

Determinations about “the complex environmental issues involved in this case” would require a court to “make policy determinations concerning GPC’s costs and benefits to the surrounding community of Muscatine,” Smith wrote. “The Court finds that these decisions have been entrusted by Congress to the EPA and that they are not properly reviewed in district court.”

From Jason Liegois’ report on the June 13 Iowa Supreme Court ruling:

In its previous request for summary judgment, GPC gave three reasons for its position:

They said the residents’ common law and statutory claims were overridden by the Federal Clean Air Act (CAA).

They think the plaintiffs’ common law claims also were overridden by Iowa Code chapter 455B, the state’s companion law to the Clean Air Act.

The issues raised by the residents were political questions that could not and should not resolved by the judicial process.

Smith granted the summary judgment, agreeing with GPC on all of its points in saying the plaintiffs should depend on federal and state laws despite noting that even if half of the plaintiffs’ claims about the company’s practices were true, “there has been blatant disregard for the environment and the community of Muscatine.”

But in Friday’s ruling, Appel said the regulations serve a different purpose from a private lawsuit for an individual’s injury.

“GPC suggests that allowing state law actions based on source-state law will undercut the structure of the CAA. We think not,” Appel wrote. “The nuisance and common law actions in this case are based on specific harms to the use and enjoyment of real property that are different from the public interest generally in controlling air pollution.”

  • It's about time

    The last major action against this company cost it around $500,000. That resulted in window-dressing changes, most of which were to make sure that air monitoring equipment couldn’t detect problems. As an example, when the wind blew from the stacks to the air monitoring station, GPC burned low-sulfur coal so the sulfur levels in the air wouldn’t cause violations. Another is that many high-emission operations were conducted at night so that high levels of pollutants were present when the fewest people were awake. All this is easily determined by looking up the historical pollution spikes for the Muscatine air quality monitor station on the web. The Iowa Environmental Council should have much of this information in its files.

    I’ve been told that GPC’s new infrastructure and updates to older equipment in the last three years or so haven’t done much – that from a resident who is sensitive to pollution. There was press ahead of these upgrades that GPC was being community-friendly and taking its responsibility for better air quality quite seriously.

    Interestingly, the recent former director of the Iowa DNR, Roger Lande, represented GPC as an attorney. I don’t know if he was involved in environmental cases, but he certainly didn’t apply any knowledge of environmental regulation while at the DNR. Quite the contrary, his appointment by Gov. Branstad seems to be a case of letting the fox into the chickenhouse. At the very least Lande had no credentials for the job, so how could he have participated in the regulatory mission of the DNR with any credibility?

    It’s another case of conflicted interests, if you ask me. But then the Branstad interest has gutted the meaning of that phrase, “conflict of interests.” He’s almost gone out of his way to appoint people who are extremely partial and vested in the outcomes of their actions.

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