By Myron Levin, Lilly Fowler and Stuart Silverstein
FairWarning.org

Tallahassee Democrat

Robert Barnhart, right, and his wife, Kimberly. Barnhart claims he was fired by Lamar Advertising in August 2011 when he refused to continue poisoning trees that blocked the view of Lamar billboards. He has been granted immunity in a criminal investigation, and has sued over loss of his job.

Robert J. Barnhart was a crew chief for a billboard company, and a soldier in a war on trees.

Trees were the enemy if they spoiled the view of a billboard. On days of an attack, Barnhart, 27, would arrive by dawn at Lamar Advertising Co. in Tallahassee, Fla. After removing the magnetic Lamar logo from a company truck, he would set forth with a machete, a hospital mask and a container of what he described as a "pretty gnarly" herbicide.

It was all about being fast: Hack into the roots or base of the tree, douse the wound with herbicide, and get out of there. The Lamar executive who gave the orders, said Barnhart, called it "a hit and run."

Barnhart’s account, detailed in court papers and in statements to investigators, is the focus of a criminal investigation. It also is the basis for a whistleblower suit in which Barnhart, who through his lawyer declined to be interviewed, maintains that he was fired because he would not keep poisoning trees. His claims are supported by sworn testimony from Barnhart’s former supervisor, Chris Oaks, who admitted that he, too, had illegally poisoned trees before Barnhart took over in 2009 as poisoner-in-chief.

As long as there have been billboards, trees have been getting in the way. And billboard companies have been removing them — sometimes legally, sometimes not. News archives are replete with accounts of mysterious tree disappearances near billboard sites. Usually, no one gets caught, due to lack of evidence or to officials failing to aggressively pursue those responsible.

North Carolina Department of Transportation

Poisoned trees near a billboard for a topless dance joint in North Carolina in 2006.

Fewer trees means more viewing time for motorists, and more money for billboard operators. A 500- foot clearance in front of a sign creates more than five seconds of viewing time for a motorist going 60 mph.

It’s uncertain if the Tallahassee tree-poisonings were isolated, or reflect a pattern at Lamar. The Baton Rouge, La., company has nearly 150,000 billboards, more than any other U.S. outdoor advertising firm.

Barnhart and Oaks said they acted under orders from Lamar’s former regional manager, Myron A. "Chip" LaBorde, who ran company operations in Florida and Georgia and was past president of the Florida Outdoor Advertising Association LaBorde died of pancreatic cancer last summer.

Hal Kilshaw, a Lamar vice president and chief spokesman, declined to discuss the criminal investigation, but said "cutting of trees or poisoning of trees without the required permits would be contrary to company policy."

Charges in the tree-poisoning case could be filed soon. Meanwhile, another tree-killing binge in the Florida panhandle has also drawn attention. In that episode, billboard operator Bill Salter Outdoor Advertising cleared more than 2,000 trees from public rights of way to enhance views of its signs.

Florida transportation officials acted "in flagrant violation of the law" in issuing permits for the cutting, a grand jury found in January, because, among other things, they did not require Salter to compensate the state for the loss of the trees, valued at $1 million to $4 million. The permits were issued to Salter after a state legislator, Greg Evers, intervened by making calls to the state Department of Transportation. The agency is currently negotiating with Salter for repayment.

Tree pruning also happens routinely, and legally, by arrangement between billboard operators and private landowners. The industry has lobbied for state laws to allow tree-cutting along public highways under certain conditions. According to the Outdoor Advertising Assn. of America, the industry trade group, 29 states, including Florida, have "reasonable" regulations on clearing vegetation that blocks views of signs. The group says on its website: "The OAAA discourages vegetation control that is not in compliance with state and local laws and regulations."

However, environmental groups have criticized these laws, asking why publicly owned trees that provide beauty and shade should be removed to accommodate advertising signs. Though billboard companies pay for the cutting, critics say permit fees and compensation for destroyed trees do not meet the real cost to taxpayers. Moreover, they note, in states that permit vegetation removal, illegal cutting still takes place.

Lamar’s Kilshaw said his company’s record is good. "We have over 150 offices, we have thousands of employees, we’ve been in business over 100 years," he said. The record shows Lamar is "doing the right thing almost all the time, almost everywhere."

'An honest, legitimate mistake'
In 2008, Lamar was sued by the state of Connecticut after the company and a tree service trespassed on state land and removed 83 trees along Interstate 84, including oak, spruce, maple and birch trees up to 37 inches in diameter. They "swept a swath of destruction," said then-Attorney General Richard Blumenthal, "obliterating a vital environmental buffer protecting homeowners from noxious noise and views."

The problem was that Lamar had a permit to trim — not cut down — trees. It also felled trees outside the permitted area.

Florida Office of Agricultural Law Enforcement

An oak tree in Florida allegedly poisoned by Robert Barnhart. The tree "had signs of dying and chop marks near the base," said the report by Florida investigators.

It was "an honest, legitimate mistake," Kilshaw said, adding that a state transportation official had observed the work without raising objections. But a judge found Lamar liable in October, 2010. In lieu of paying damages, Lamar agreed to fund a replanting program for an estimated $181,000.

In 2009, Lamar was forced to pay about $182,000 to an irate Ohio couple for illegally felling 34 trees on their property to improve views of a sign.

The dispute began in the late 1990s when, according to John Blust, he and his wife rebuffed Lamar’s offer to plant a sign on land they owned in the Dayton suburb of Beavercreek.

A neighbor proved more obliging, and the billboard went up there. But it turned out that the Blusts’ trees were in the way. They lived a few miles from the property, and did not learn of the destruction of their woodland until alerted by a cousin.

Blust told FairWarning that he sought compensation, and "If they had sent me $3,000, it would have been all over." But a Lamar executive "laughed at me over the phone from Baton Rouge, Louisiana," said Blust, who then decided to sue.

A jury awarded the Blusts more than $2.2 million in punitive damages. Appeals dragged the marathon case into 2009, when an appeals court ruling led to Lamar paying damages and attorney fees.

"In that case, our contractor made a mistake," Kilshaw said, "and simply went across a property line, and we ultimately paid on that."

For his part, Blust, 76, said he was "satisfied that I caused them pain. Did we make a lasting impression on the management of Lamar? If they’re still cutting down trees, I guess we didn’t."

What is unusual about these episodes is that someone got caught. More often, over the years, the culprits remained unknown or were not aggressively pursued by authorities.

For example, a 1985 report by the General Accounting Office cited dozens of incidents in Georgia of illegal tree cutters acting with impunity, including a case in which about 500 trees were poisoned near three signs along interstate highways.

In Louisiana, said the GAO, "over 2,000 feet of vegetation and trees were cut and cleared to enhance the visibility of two signs. We counted over 900 stumps from destroyed trees at this site."

In a 1996 deposition, a former billboard company tree trimmer testified that he had cut down and poisoned trees in the Los Angeles area for many years, usually without the owners’ consent. The former employee, Fred Jackson, worked until the late 1980s for two large billboard companies, Foster & Kleiser and Patrick Media, that eventually merged and were absorbed by Clear Channel Outdoor.

Jackson said he occasionally was confronted about what he was doing, and would make up a lie. It might be "‘I’m working for the Edison Company,’" Jackson testified. "That was a great one."

More recently, illegal tree clearing near billboards and "supergraphics’’ — giant ads draped on buildings — has been a problem in Southern California, said Dan Freeman, an official with the state Department of Transportation, or Caltrans.

"The billboard industry — well, my impression of them is they’re kind of lawless," said Freeman, Caltrans’ deputy director of maintenance for Los Angeles and Ventura counties. "They pretty much do whatever they want."

"We’ve been victim a number of times to people who come in the middle of the night, with a chainsaw, and just kind of clear cut the area immediately in front of one of these supergraphics or a large billboard," Freeman told FairWarning.

"And, of course, we call them," Freeman said, referring to the sign company, "and they say, ‘We have no idea who could have done it. My, what a terrible thing.’ They don’t own up to it. We have had a very, very difficult time in getting traction on prosecuting them."

The right to be seen
Billboard companies have sometimes claimed an inherent right to have unimpaired views of their signs. If revenues go down because of public trees, they have argued, public agencies should pay damages. This has been a hard sell.

For example, a Tennessee appeals court rejected an industry lawsuit against the state department of transportation over its failure to maintain unrestricted views of roadside signs.

"It is true that wild vegetation, as well as that planted by the State, has and will have a normal tendency to grow taller," said the 1979 ruling. "Plaintiffs seem to insist that the licensing of a billboard confers some special right of visibility or imposes some special duty upon the State to maintain visibility of the licensed billboard. No authority has been cited or found to sustain this novel theory."

In 2006, the California Supreme Court rejected claims of billboard operator Regency Outdoor, which had sued the city of Los Angeles, claiming it lowered the value of its signs by planting palm trees for a beautification project.

"The right to be seen from a public way…simply does not exist," the Supreme Court ruled. "Regency cannot claim unfair surprise from the plantings. Local governments have long planted trees along roads for aesthetic reasons, to lessen the burdens of climate, and for other salubrious purposes."

So the industry has turned to state legislatures to establish the right to be seen. Under laws or regulations of most states, billboard operators can legally cut back trees and other vegetation along state and federal highways. Typically, they must pay for a permit, file a work plan, and either replant or pay for lost trees.

The Outdoor Advertising Assn. of America failed to respond to interview requests, but in an email described vegetation control as "a common, longstanding practice along roadways for the sake of safety and visibility."

Once state rules are in place, billboard companies often lobby state legislatures to relax restrictions and expand the freedom to cut. In the past year, for example, the industry pushed through such changes in Georgia, North Carolina and Wisconsin.

In Georgia billboard companies won more freedom to clear trees, though the new law is tied up in a court challenge. The industry’s legislative success followed years of cultivating lawmakers. From 2001 through 2010, billboard owners and the Outdoor Advertising Association of Georgia contributed at least $467,522 to candidates for state office, according to a report by the advocacy group Scenic Georgia.

The Outdoor Advertising Association also did some wining and dining, last year hosting 34 Georgia legislators and two board members of the state Department of Transportation at a golf outing at the Reynolds Plantation resort, according to The Atlanta Journal-Constitution.

A Georgia Department of Transportation spokeswoman said that in the past five years, the agency has completed investigations into 20 complaints of illegal tree cutting, and collected about $203,000 in compensation.

In North Carolina, the industry-backed law passed last July expanded the cutting area to up to 380 feet on each side of billboards — up from 250 feet before. This translates into extra viewing time of 1.5 seconds for motorists approaching billboards at 60 mph. State transportation officials estimated that up to 200,000 trees could be removed in the next five years as a result.

From 2005 through June, 2011, billboard interests donated at least $206,000 to state legislative and gubernatorial candidates in North Carolina, according to a report by the nonprofit group Democracy North Carolina, and research by FairWarning.

"They’ve got a lot of money, and it’s amazing how cheaply legislators can be bought," said North Carolina resident Charles Floyd, a retired University of Georgia business professor who has written extensively about the billboard industry and is critical of the new law.

Even in states such as North Carolina that provide a legal means to enhance billboard views, incidents of illegal cutting and poisoning still occur. In some respects, loosening restrictions is the path of least resistance, reducing the number of violations and need for enforcement.

"If you legalize vandalism,’’ Floyd complained, "that helps out a lot.’’

Since July, 2006, the North Carolina Department of Transportation recorded 88 incidents of illegal tree removal near billboards, according to agency data reviewed by FairWarning.

The cost to the state was $923,000 under a formula based on the size of lost trees. Of that amount, records show, the state was able to collect only about $39,000. Without admitting liability, Lamar paid $18,487.50 to settle one of the cases.

Criminal probe in Florida
Soon after Barnhart filed his whistleblower suit, he led state agriculture officials to an oak tree he claimed he had poisoned next to a CVS pharmacy in Tallahassee. When the lab results came back in October, they revealed a herbicide, Triclopyr, in soil and vegetation samples.

Florida Department of Transportation

The stump of one of more than 2,000 trees allegedly cut by a billboard company in northern Florida. According to a grand jury report, state officials issued permits to cut the trees "'in flagrant violation of the law."

He told officials it was one of seven to 10 trees he had illegally poisoned since 2009. Sometimes, he said, he used a machete before pouring in the poison, other times drilled holes in a tree, and on still other occasions he simply cut them.

Barnhart has been granted immunity by the state attorney in Tallahassee. Asked to comment on the criminal probe, State Attorney William Meggs said his office is continuing to gather information.

In a deposition taken in the whistleblower case, Chris Oaks, Barnhart’s supervisor, confirmed Barnhart’s account. Oaks admitted to poisoning trees himself under orders from his boss, LaBorde.

Oaks, 35, claimed he initially balked, saying he thought Lamar must first get permits.

"And he told me, he said to just jump over the fence and do what needs to be done and kick a little dirt over it," Oaks testified, referring to LaBorde, "and if you don’t know how to do that, I’ll take out my gun and I’ll shoot you in the head."

Oaks said he figured LaBorde was joking. But "I felt then that I needed to do what the man was telling me for fear — not for death, I didn’t really think he would kill me, but I did feel like it was threatening to my job," Oaks said.

"I just want to get it clear that none of this was me," Oaks said. "I did not want to do any of this."

Barnhart said fear of getting caught on a surveillance camera and, according to his lawyer, pressure from his wife led him to come forward. Barnhart said that after suffering a back injury and going on light duty, he told managers that he would no longer poison trees when he came back. In August, he says, he was fired.

Lamar contends it never fired Barnhart. The company’s response is less clear cut on the other alleged violations, such as criminal mischief and illegal handling of poisons.

"Any act or omission by Lamar was done in good faith," the company said in court papers. "To the extent that the actions of any Lamar employee were, in fact, in violation…, those actions directly violated Lamar’s corporate policies and procedures and were, thus, beyond the course and scope of their employment."

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.

Support for this story came from the Fund for Investigative Journalism.

In the field of climate science, when someone — especially skeptics — did something ethically questionable or misrepresented facts, scientist Peter Gleick was usually among the first and loudest to cry foul. He chaired a prominent scientific society's ethics committee. He created an award for what he considered lies about global warming.

Now Gleick admits that he posed as a board member to get and then distribute to the media sensitive documents from a conservative think tank that is a leader in questioning mainstream climate change science.

And ethicists are criticizing the man who took others to task for what they say was stepping way over the ethical line. The think tank, the Chicago-based Heartland Institute, said it is considering legal action against him.

Gleick, who won a MacArthur genius award and is co-founder of the Pacific Institute for Studies in Development, Environment and Security, was chairman of the American Geophysical Union's ethics committee. He also had a column at Forbes.com where he criticized climate skeptics and trumpeted the resignation of a scientific journal editor who published a disputed study. He admitted Monday night that he solicited and leaked the Heartland documents, writing in a blog post on The Huffington Post.

Gleick resigned from the chairmanship of the ethics panel last week.

"What a mess," said Mark Frankel, head of scientific responsibility for the American Association for the Advancement of Science, the world's leading scientific society, which also had Gleick as a panel member on some committees. "It's compounded by the fact that he was chairman of the ethics committee of a professional society. ... It's an ethical morass that he finds himself in."

And Gleick's actions cast unwarranted doubt on the work of other scientists, Frankel said.

Last week, someone identifying himself as "Heartland insider" sent 15 media members and others six documents, purportedly from Heartland. They included a fundraising document, a budget and a two-page "climate strategy." They showed the think tank receiving millions of dollars — more than $14 million over six years from one anonymous man — in big contributions with plans to teach school children to question mainstream climate science. It also showed funding of scientists who are climate-change skeptics.

Heartland said the two-page strategy document was a fake and the others were stolen. The Associated Press, which received the documents along with other news organizations, was able to verify the accuracy of several of the most sensational parts with the individuals named. The documents caused a stir, mirroring the hacking of climate scientists' emails two years earlier from a British research center.

"My judgment was blinded by my frustration with the ongoing efforts — often anonymous well-funded and coordinated — to attack climate science and scientists," Gleick wrote. "Nevertheless, I deeply regret my own actions in this case."

Not good enough, Heartland president Joseph Bast said in a press release: "It has caused major and permanent damage to the reputations of The Heartland Institute and many of the scientists, policy experts and organizations we work with."

The issue is about deception and there are only a few things that could possibly warrant that — and embarrassing Heartland isn't one of them, said Dani Elliott, who teaches ethics at the University of South Florida.

The geophysical union, a scientific society, said in a statement that Gleick's actions are "inconsistent with our organization's values."

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Updated: 4:40 p.m. ET on Feb. 15: The Heartland Institute says the documents referred to below were obtained through "pretexting," in which a person posing as a board member sent an e-mail asking a staffer to "resend" documents from board meetings. The Institute says one of the documents, a "climate strategy" memo, "is a total fake," and the institute says it has not had a chance to reach its president, who is traveling, to determine whether any of the other documents were altered. See the full statement from Heartland below. The group later said that the president had returned, that one document is definitely faked, and that it would not comment on the rest.

Internal documents have been leaked from the Heartland Institute, a Chicago nonprofit think tank, showing its funding of leading skeptics of global warming and a plan to teach climate change skepticism in schools. An anonymous person leaked the documents to several publications and activists supporting the science of climate change. 

"The heart of the climate denial machine relies on huge corporate and foundation funding from U.S. businesses, including Microsoft, Koch Industries, Altria (parent company of Philip Morris) RJR Tobacco and more," reports the DeSmogBlog, which published the documents on Tuesday. The blog opposes what it calls the "climate denial machine." (Disclosure: msnbc.com is a joint venture of Microsoft and NBC Universal.)

The first batch of documents is here on the DeSmogBlog, and a second batch dealing with fundraising.

Many people lament the absence of educational material suitable for K-12 students on global warming that isn’t alarmist or overtly political. Heartland has tried to make material available to teachers, but has had only limited success. Principals and teachers are heavily biased toward the alarmist perspective. Moreover, material for classroom use must be carefully written to meet curriculum guidelines, and the amount of time teachers have for supplemental material is steadily shrinking due to the spread of standardized tests in K-12 education.

Dr. David Wojick has presented Heartland a proposal to produce a global warming curriculum or K-12 schools that appears to have great potential for success. Dr. Wojick is a consultant with the Office of Scientific and Technical Information at the U.S. Department of Energy in the area of information and communication science. He has a Ph.D. in the philosophy of science and mathematical logic from the University of Pittsburgh and a B.S. in civil engineering from Carnegie Tech. He has been on the faculty of Carnegie Mellon and the staffs of the U.S. Office of Naval Research and the Naval Research Lab.

Dr. Wojick has conducted extensive research on environmental and science education for the Department of Energy. In the course of this research, he has identified what subjects and concepts teachers must teach, and in what order (year by year), in order to harmonize with national test requirements. He has contacts at virtually all the national organizations involved in producing, certifying, and promoting science curricula.

Dr. Wojick proposes to begin work on “modules” for grades 10-12 on climate change (“whether humans are changing the climate is a major scientific controversy”), climate models (“models are used to explore various hypotheses about how climate works. Their reliability is controversial”), and air pollution (“whether CO2 is a pollutant is controversial. It is the global food supply and natural emissions are 20 times higher than human emissions”).

Wojick would produce modules for Grades 7-9 on environmental impact (“environmental impact is often difficult to determine. For example there is a major controversy over whether or not humans are changing the weather”), for Grade 6 on water resources and weather systems, and so on.

We tentatively plan to pay Dr. Wojick $5,000 per module, about $25,000 a quarter, starting in the second quarter of 2012, for this work. The Anonymous Donor has pledged the first $100,000 for this project, and we will circulate a proposal to match and then expand upon that investment.

Here's a copy of the group's fundraising plan, with a list of donors.

The documents also show funding of leading voices among the opponents of the idea of global warming: "At the moment, this funding goes primarily to Craig Idso ($11,600 per month), Fred Singer ($5,000 per month, plus expenses), Robert Carter ($1,667 per month), and a number of other individuals, but we will consider expanding it, if funding can be found."

About its funders, the group refers to a single anonymous donor: "Our climate work is attractive to funders, especially our key Anonymous Donor (whose contribution dropped from $1,664,150 in 2010 to $979,000 in 2011 - about 20% of our total 2011 revenue). He has promised an increase in 2012…"

Other donors are named: "We will also pursue additional support from the Charles G. Koch Foundation. They returned as a Heartland donor in 2011 with a contribution of $200,000. We expect to push up their level of support in 2012 and gain access to their network of philanthropists, if our focus continues to align with their interests. Other contributions will be pursued for this work, especially from corporations whose interests are threatened by climate policies."

Statement from the Heartland Institute

Heartland Institute Responds to Stolen and Fake Documents

FEBRUARY 15, 2012 – The following statement from The Heartland Institute – a free-market think tank – may be used for attribution. For more information, contact Communications Director Jim Lakely at jlakely@heartland.org and 312/377-4000.

Yesterday afternoon, two advocacy groups posted online several documents they claimed were The Heartland Institute’s 2012 budget, fundraising, and strategy plans. Some of these documents were stolen from Heartland, at least one is a fake, and some may have been altered.

The stolen documents appear to have been written by Heartland’s president for a board meeting that took place on January 17. He was traveling at the time this story broke yesterday afternoon and still has not had the opportunity to read them all to see if they were altered. Therefore, the authenticity of those documents has not been confirmed.

Since then, the documents have been widely reposted on the Internet, again with no effort to confirm their authenticity.

One document, titled “Confidential Memo: 2012 Heartland Climate Strategy,” is a total fake apparently intended to defame and discredit The Heartland Institute. It was not written by anyone associated with The Heartland Institute. It does not express Heartland’s goals, plans, or tactics. It contains several obvious and gross misstatements of fact.

We respectfully ask all activists, bloggers, and other journalists to immediately remove all of these documents and any quotations taken from them, especially the fake “climate strategy” memo and any quotations from the same, from their blogs, Web sites, and publications, and to publish retractions.

The individuals who have commented so far on these documents did not wait for Heartland to confirm or deny the authenticity of the documents. We believe their actions constitute civil and possibly criminal offenses for which we plan to pursue charges and collect payment for damages, including damages to our reputation. We ask them in particular to immediately remove these documents and all statements about them from the blogs, Web sites, and publications, and to publish retractions.

How did this happen? The stolen documents were obtained by an unknown person who fraudulently assumed the identity of a Heartland board member and persuaded a staff member here to “re-send” board materials to a new email address. Identity theft and computer fraud are criminal offenses subject to imprisonment. We intend to find this person and see him or her put in prison for these crimes.

Apologies: The Heartland Institute apologizes to the donors whose identities were revealed by this theft. We promise anonymity to many of our donors, and we realize that the major reason these documents were stolen and faked was to make it more difficult for donors to support our work. We also apologize to Heartland staff, directors, and our allies in the fight to bring sound science to the global warming debate, who have had their privacy violated and their integrity impugned.

Lessons: Disagreement over the causes, consequences, and best policy responses to climate change runs deep. We understand that.

But honest disagreement should never be used to justify the criminal acts and fraud that occurred in the past 24 hours. As a matter of common decency and journalistic ethics, we ask everyone in the climate change debate to sit back and think about what just happened.

Those persons who posted these documents and wrote about them before we had a chance to comment on their authenticity should be ashamed of their deeds, and their bad behavior should be taken into account when judging their credibility now and in the future.

---

The document that Heartland says is a fake is this one titled "2012 Heartland Climate Strategy." The spokesman, Lakely, said it was defamatory to suggest that Heartland did not want science to be taught in schools, or that it would try to keep opposing views out of the press, or would think that it could.

The DeSmogBlog says about the "faked document":

The DeSmogBlog has reviewed that Strategy document and compared its content to other material we have in hand. It addresses five elements:

The Increased Climate Project Fundraising material is reproduced in and confirmed by Heartland's own budget.

The "Global Warming Curriculum for K-12 Classrooms" is also a Heartland budget item and has been confirmed independently by the author, Dr. David Wojick.

The Funding for Parallel Organizations; Funding for Selected Individuals Outside Heartland are both reproduced and confirmed in the Heartland budget. And Anthony Watts has confirmed independently the payments in Expanded Climate Communications.

The DeSmogBlog has received no direct communications from the Heartland Institute identifying any misstatement of fact in the "Climate Strategy" document and is therefore leaving the material available to those who may judge their content and veracity based on these and other sources.

By Myron Levin, FairWarning.org

Wind power is riding a strong breeze. In the last five years, generating capacity in the U.S. has nearly quadrupled. Clusters of tubular wind towers, rising up to 300 feet above ridgelines and gusty plains, are an increasingly familiar sight.

But in the scramble to expand clean energy and green jobs, the wind industry has fallen short on worker safety.

Thousands of the giant wind machines violate a federal requirement to give technicians who work inside the towers enough maneuvering space to get up and down their ladders safely. The standard says the space near the ladder should be free of permanent obstructions that could cause serious head or back injuries if a climber slips or is moving fast.

There are about 36,000 of the wind towers in the U.S., and more are being added all the time. Most are produced overseas to meet international codes. For reasons they won’t explain, the manufacturers either ignored the U.S. standard, or thought it wouldn’t apply to them.

The companies "evidently didn’t look into U.S. codes and standards, especially safety standards, in doing their designs," said Patrick Bell, a senior safety engineer with the California Division of Occupational Safety and Health, or Cal-OSHA, and a member of a federal OSHA wind energy task force.

OSHA officials say they’re not aware of any serious injuries so far. Still, the violations are so widespread that they have flummoxed safety regulators, who are trying to figure out the extent of the hazard and what to do about it.

"We could conceivably issue citations," said Bell of Cal-OSHA, "but we might end up taking all of our compliance officers off other industries to run from one wind farm to the next."

"We are trying to work with the industry," he said, "because it’s a huge industry with all the wind towers going up."

The manufacturers have been reluctant to talk about the problem. Officials with Vestas Americas, part of Vestas Wind Systems A/S of Denmark, the world’s biggest turbine supplier, declined to be interviewed and would not respond to written questions. GE Energy, the top U.S. wind turbine maker, took the same stance. Both companies referred inquiries to the American Wind Energy Assn., a trade group.

Michele M. Mihelic, the association’s manager of labor, health and safety policy, said in an email to FairWarning that the group "cannot make a blanket statement that all wind turbines comply or not."

"Each wind turbine make and model is different," she said.

The OSHA standard dates to the 1970s, and applies to the use of fixed ladders at work sites generally, not to wind towers specifically. It requires a clearance of 30 inches from the ladder so workers can safely move up and down. If there are permanent obstructions within the climbing space, they must be shielded so workers can squeeze past without getting hurt.

The main issue with tower designs is the use of heavy steel bolts and rims known as flanges to join their long, tubular sections. In the two or three spots where the sections are fastened, the bolts and flanges intrude at least several inches into the safety space.

Two field technicians have sought to draw attention to the issue, saying they were stunned by the prevalence of the problem.

"Between my friends and I … we’ve been in thousands of wind turbines and haven’t found one that’s compliant with this issue," said Ed Oliver, 47, of Dana Point, Calif.

"We can’t believe this exists everywhere we go," said Nick Nichols, 45, of Zephyr Cove, Nev. "The regulations are there for a reason."

The men said they have seen nothing worse than bruised tailbones and minor scrapes from encounters with the flanges. But they said it’s only a matter of time before there are serious injuries. They pointed to the growing use of "climb assists" that use motors and pulleys to support part of the weight of technicians, allowing them to climb faster and basically rappel downward in the descent.

Oliver and Nichols have complained to OSHA. They also took the unusual step of offering the industry their own version of a safety device, called a deflector. The website for their company, Pinnacle Wind USA, shows what looks like a short section of a playground slide covering a flange. "Developed BY tower climbers, FOR tower climbers," it says.

Their efforts haven’t brought any love from the wind industry. In August, they were stunned by an email to Nichols from Mihelic of the wind association.

"You should…be aware that there are people posing as OSHA compliance officers and/or OSHA consultants and are threatening people in the industry with citations if they don’t buy your product," the email said.

Mihelic added that OSHA had been told about the scheme and "has requested that if any of our members are approached in this manner to please report it to them so they can investigate."

The two men immediately suspected it was a bogus claim designed to discredit them. Soon after, Nichols enlisted the help of U.S. Sen. Dean Heller, R-Nev., to see what OSHA knew about it.

David Michaels, assistant secretary of labor for Occupational Safety and Health, responded Oct. 11 with a letter to Heller that seemed to contradict Mihelic. OSHA officials were unaware of "any reported cases of OSHA impersonators threatening companies to purchase Pinnacle Wind USA products," the letter said.

Mihelic told FairWarning she stood by her email to Nichols.

Meanwhile, the ladder issue remains up in the air.

OSHA has not yet issued citations for violations of the standard. Brian Sturtecky, OSHA’s area director in Jacksonville, Fla., and chairman of its wind energy task force, said the agency is preparing a "letter of interpretation" to clarify how the standard will be applied

The result could be a mandate for the industry to retrofit thousands of towers. Or, the industry could get a pass if the agency decides the hazard can be controlled by other measures, such as training.

The task force is examining other safety issues in the industry in the wake of some serious accidents.

In August, 2007, a worker was killed and another injured in the collapse of a tower at a wind farm near Wasco, Ore. Also, OSHA fined Outland Energy Services $378,000 for safety violations after an employee suffered serious electrical burns at an Illinois wind farm in October, 2010.

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.

FairWarning.org

By Myron Levin, FairWarning.org

Federal health officials are calling for protective measures at job sites where workers may be exposed to erionite, a cancer-causing mineral similar to asbestos that is found in rock and soil in at least a dozen western states.

An advisory published Tuesdayby the National Institute for Occupational Safety and Health recommended a series of steps to prevent employee exposure to eronite fibers at sites such as gravel quarries and road projects. The NIOSH alert noted that erionite was responsible for "remarkably high" rates of mesothelioma, a lethal form of cancer that devastated several Turkish villages where erionite was concentrated in rock and soil.

Erionite fibers pose an inhalation hazard similar to asbestos, but available research suggests erionite is more dangerous.

As reported in October by FairWarning and msnbc.com, authorities have long known that erionite is widespread in the West but haven’t investigated the potential risks, apparently believing there was little chance of human exposure.

Oregon Department of Geology and Mineral Industries

Erionite in rock formations in Rome, Oregon.

As a result, amid an expansion of roads, pipelines, and power lines in remote areas, erionite remains unregulated, and federal agencies until now have failed to alert land-use officials, developers and residents so they might take precautions.

About 30 officials and scientists from federal health and environmental agencies last month held a day-long erionite workshop in North Carolina. "At a minimum, we can begin to start to educate the public and policymakers," said Dr. Aubrey Miller, a senior medical advisor at the National Institute of Environmental Health Sciences, who chaired the meeting. "I certainly don’t want to count bodies later."

The steps recommended Tuesday by NIOSH, though purely voluntary, are a first attempt to address potential occupational risks.

"From the evidence at hand …it’s prudent and it’s reasonable to approach controlling exposures as one would control asbestos,"said NIOSH spokesman Fred Blosser.

Erionite, a member of the zeolite family of minerals, is formed from volcanic ash that has been weathered by water. Like asbestos, it is harmless until it is disturbed, and the microscopic, needle-like fibers waft into the air.

Until the late 1970s, when the mesothelioma epidemic was first reported in Turkey, asbestos was thought to be the only cause of the rare cancer. But erionite was found to be the culprit. In the hardest-hit villages, where 40 percent to 50 percent of all deaths were caused by mesothelioma, erionite was abundant in soil and rock, and was used to build homes.

Animal studies showed erionite to be 100 to 800 times more carcinogenic than asbestos and, according to a scientific paper, "almost certainly the most toxic naturally occurring fibrous mineral known."

The NIOSH alert acknowledged the paucity of data on erionite risks in the U.S. According to co-authors David Weissman, director of the agency’s division of respiratory disease studies, and Max Kiefer, director the NIOSH’s western states office, "little is known about exposures currently experienced by U.S. workers." But it said there is some evidence of health effects among road construction workers exposed to erionite-containing gravel or soil.

It cited studies in North Dakota. In 2005, it was revealed that erionite-laden gravel mined in the western part of the state had been used to cover hundreds of miles of unpaved roads.

Mesothelioma develops decades after initial exposure, and no proof has emerged of high rates of the disease in North Dakota. However, air sampling along the gravel roadways and in vehicles, including inside school buses, revealed erionite level similar to those in some stricken Turkish villages. And a preliminary health study found that two road maintenance workers had mild lung scarring consistent with breathing mineral fibers.

In the absence of clear risk data and regulations, however, use of erionite-containing gravel has continued in the state. The North Dakota Department of Transportation has banned its use in state road projects, but some local governments and private companies rely on it still.

Complicating the picture, the state is in the midst of one of the greatest oil booms in U.S. history, with a huge spike in truck traffic tearing up unpaved roads and increasing the need for maintenance. To use only erionite-free gravel to patch the roads would mean hauling from 40 miles away, which is “cost prohibitive,” Reinhard Hauck,  the auditor and treasurer of Dunn County, N.D., told FairWarning. Local officials are "behind the 8 ball constantly trying to figure out how to maintain the infrastructure we have."

Scott Radig, director of waste management for the state Department of Health, said the agency has provided advice to energy companies and construction contractors on controlling dust and avoiding gravel with erionite content. But Radig said such steps are purely voluntary, and he doesn’t know how many companies comply.

The NIOSH advisory listed more than a dozen measures to control potential hazards, including employee training and determining if erionite-containing material is present before beginning work.

Other steps included wetting soil and rock to reduce dust; using respirators and other protective equipment; showering and changing clothes before leaving work; and ensuring work clothes and boots are left at work to prevent hazardous fibers from being brought home. 

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.

Oregon Department of Geology and Minerals

Photo shows volcanic tuff containing erionite in Oregon.

By Myron Levin, FairWarning.org

Mesothelioma, an exceedingly rare and lethal form of cancer, was once thought to be caused only by inhaling asbestos fibers.

Then in the late 1970s, when astonishing rates of the disease were reported among villagers in central Turkey, studies determined that a different fibrous mineral was the culprit. Erionite was abundant in native soil and stone, and so easy to work with that villagers had used it to build homes.

In the most devastated communities, known locally as “cancer villages,” mesothelioma rates were off the charts--responsible for 40 percent to 50 percent of all deaths. Animal studies showed erionite to be 100 to 800 times more carcinogenic than asbestos and, according to a scientific paper, “almost certainly the most toxic naturally occurring fibrous mineral known.”

In the U.S., medical journals and news stories presented the Turkish epidemic as a gruesome, but distant, catastrophe. They largely omitted a key fact: Erionite deposits are present scores of sites in at least a dozen western U.S. states.

Interviews and documents from the 1980s show there was a flicker of interest in assessing the risks in the U.S., but researchers and officials lost interest and moved on to other things.

FairWarning.org

The result is that, after three decades, erionite remains a word most Americans—and many environmental officials--have never heard. Amid an expansion of roads, pipelines, power lines, wind and solar farms and recreation sites in remote areas of the West, erionite is unregulated, and federal agencies have failed to alert land-use officials, developers and residents of affected areas so that they might take precautions on their own.

Uneasy about the long silence, some government officials and scientists  are trying to fashion a federal response. Toward that end, a meeting planned next week at the National Institutes of Health, will bring together representatives of the Environmental Protection Agency, the National Institute for Occupational Safety and Health, the Mine Safety and Health Administration, and the U.S. Geological Survey, to discuss potential risks from erionite and other hazardous minerals.

“We need to be cautious because there’s clear evidence of disease” from mineral fibers, said Dr. Aubrey Miller, a senior medical advisor at the National Institute of Environmental Health Sciences who will chair the meeting.

“At a minimum, we can begin to start to educate the public and policymakers,” he told FairWarning. “I certainly don’t want to count bodies later.”

Driving the renewed interest is fear of repeating past government failures to promptly inform the public of potential hazards.

One case involved Libby, Montana, where asbestos contamination from a mine near the town was blamed for scores of deaths and illnesses among workers and residents. Vermiculite ore tainted by asbestos and mined from about 1920 to 1990 was given to unwary residents for use as insulation and in other building projects. When the EPA arrived on the scene in 1999, it came under scathing criticism for failing to act earlier to inform the community and launch a cleanup.

Another was the disclosure that road crews in North Dakota, heedless of the danger, had used erionite-tainted gravel to cover hundreds of miles of unpaved roads in the western part of the state, including school bus routes, along with parking lots and recreation sites.

Erionite is found where volcanic ash and rock have been weathered by alkaline water, Like asbestos, it is harmless until it is disturbed, and the microscopic, needle-like fibers become airborne. And like asbestos, greater and more frequent exposure generally means higher risk.

No proof has emerged of erionite-related illnesses in North Dakota or other western states, but experts say that is less than reassuring. Mesothelioma usually takes 30 to 50 years to develop, is sometimes mistaken for other cancers, and when identified often is automatically assumed to be asbestos-related.

In Mexico, a mesothelioma cluster has been reported in a rural area near the border of Zacatecas and Jalisco states. Medical reports say victims had no known exposure to asbestos, but lived on a plain rich in zeolites, the mineral family that includes erionite.

When Turkish researchers in the 1970s found soaring rates of mesothelioma in the Cappadocia region, they linked it to villagers inhaling dust while farming potatoes and scallions. They soon discovered that residents were also being exposed inside their homes built with erionite-containing stones.

Research later uncovered a genetic factor. People in the hardest-hit villages had long been shunned by horrified outsiders, leading to inbreeding and magnifying the risk for those with a genetic predisposition to the harmful effects.

Documents reflect a brief interest in the health implications for the American West.

In an area of north central Nevada where erionite was present in road dust, researchers from the University of Utah examined chest radiographs from a local hospital, but turned up nothing unusual. But they also published a case report describing a local road construction worker with respiratory disease whose lung biopsy showed fibrous particles “consistent with erionite” An investigation of mesothelioma “in the Intermountain region and exposure relationships would be useful,” they wrote.

But according to two of the researchers, Dr. William Rom, currently director of the pulmonary division at the New York University School of Medicine, and Dr. Kenneth Casey, now at the University of Cincinnati College of Medicine, their request for a grant from the Institutes of Health was turned down.

About the same time, with the Defense Department proposing to build a network of “racetracks” to shuttle nuclear MX missiles over a vast area of the Great Basin, opponents seized on the problem of erionite dust. The plan was abandoned, and interest in erionite faded, too.

It was revived by chance after an official from the U.S. Geological Survey gave a talk at the spring banquet of the University of North Dakota geology department in 2005. He spoke of the need for geologists to be aware of naturally occurring hazards, mentioning erionite. An assistant professor named Nels Forsman piped up: “Hey, we’ve got some of that right here in North Dakota.”

In the mid-1980s, Forsman, had done a field study in the Killdeer Mountains of western North Dakota for the state geological survey. His 1986 report noted the presence of erionite, but he knew nothing of the events in Turkey and didn’t give it much thought.

“Nobody in our department had heard anything about it” until the banquet, Forsman told FairWarning.

But Forsman then alerted the geological survey, which contacted the state health department, which in turn brought in the EPA. Their investigation launched in 2006 revealed that erionite-containing gravel from pits in western North Dakota had been spread over some 300 miles of unpaved roads.

Air sampling along the gravel roadways and in vehicles, including inside school buses, revealed erionite levels similar to those in some stricken Turkish villages, though at lower concentrations than the most devastated communities. A preliminary health study that included 15 people thought to have high exposure to road gravel found two with pleural plaques, or lung scarring, consistent with inhalation of mineral fibers.

Michele Carbone

Dr. Michele Carbone, director of the University of Hawaii Cancer Center.

Though the erionite situation quickly erupted into a major story in North Dakota, it drew virtually no media attention outside the state. So complete was the blackout that last December, when Dr. Michele Carbone, a prominent mesothelioma researcher, briefed lung specialists at a national medical meeting in Chicago, it was the first they had heard of it, according to some who attended.

In response to the discovery, the North Dakota Department of Transportation has banned the use of erionite-containing gravel on state roads. But the western part of the state is in the midst of a gigantic oil boom, bringing a massive increase in truck traffic and road dust that residents say clouds visibility and may be harming crops and human health. Last month the state industrial commission and two of the most affected counties authorized a study of the best ways to reduce road dust.

Some agencies in other states are taking safety measures, though the efforts have been isolated and piecemeal.

In eastern Oregon, which has large erionite beds, the state transportation department is conducting a study. The idea is to avoid being “blissfully ignorant” of the locations of erionite or other naturally occurring hazards in future construction and maintenance work, said Matthew Mabey, a research engineer with the Oregon Department of Transportation.

Oregon Department of Geology and Mineral Industries

Erionite in rock formations, Rome, Oregon.

In Montana, where road building crews in the 1960s ripped the top off an erionite-bearing mountain and spread the fill along more than three miles of state highway 323, soil samples have shown erionite levels as high as 20 percent.   Highway workers have been directed to use protective suits and respirators when their work involves land disturbance, such as clearing ditches and mowing vegetation.

Erionite also occurs in rocky outcrops in parts of the Custer National Forest in southeastern Montana and western South Dakota. Forest Service officials have adopted dust control measures, including wetting down helicopter landing spots when fighting wild fires.

In a joint report, Custer National Forest and Montana officials cited the need for a federal policy to reduce risks from erionite and naturally occurring asbestos.

Mining is another activity without any rules on erionite exposure. No erionite has been mined in the U.S. for about 30 years, but it is sometimes mixed in with other types of zeolites that are produced at a few mines in the West. According to an EPA report in1987, a producer contacted by the agency stated that its zeolite products “can contain 10 to 30 percent erionite.”

Most zeolites produced today are of two varieties, chabazite and clinoptilolite. With their ability to trap and filter contaminants, they have been used to purify water and to treat radioactive and other hazardous wastes.

From its Mud Hills mine in the Mojave Desert in California, Steelhead Specialty Minerals has produced clinoptilolite for cleanup of the tsunami-stricken Fukushima nuclear plant in Japan, said its president Wallace McGregor.

Along with others in the industry, McGregor said current operators are well aware of erionite, and take pains to avoid it. But “I wouldn’t say there isn’t a trace,” he added. It’s “maybe an overstatement that there are not traces of a little bit of this, and a little bit of that, in a zeolite deposit.”

Carbone, who will be among those presenting at the meeting at the Institutes of Health, has called for action to prevent and detect mesothelioma cases in North Dakota and other erionite-rich areas.

Mesothelioma is “a cancer that in most cases can be prevented,” he said in an interview. “We really have the possibility to do something…to prevent cancer in future generations.”

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.