Settlement in J.H. Baxter pollution cases ‘is not justice,’ attorney says

Chris Nidel scrolled through a Facebook group about cattle dogs when he came across a thumb-stopping post: A woman wrote that three of her dogs died of the same cancer.

“You may want to check what’s in the water,” he recalled writing in a comment. “She said, ‘Every morning we go for a walk along a canal. It smells like mothballs.'”

Nidel pulled up a map of the waterway — the Roosevelt canal in west Eugene — and spotted a wood treatment plant nearby. As an environmental lawyer with a background in engineering and science, he knew such facilities used highly toxic chemicals.

From his home on the East Coast, he booked a flight to see the J.H. Baxter & Co. facility himself. It was 2021, and the polluter was nearing its operational demise — a decline that ultimately led to it being declared a Superfund site earlier this year.

As the cleanup drags on, so do court proceedings.

Nidel works with plaintiffs who were once part of a class-action lawsuit. Their legal complaints say that J.H. Baxter’s “reprehensible” behavior poisoned the community for decades.

After nearly four years of litigation and repeated deadline extensions, the class action broke apart into individual civil cases. Now, rather than looking for a trial, they are looking to settle. The compensation they seek has not been publicly disclosed, but the company claims it doesn’t have much money left to pay, according to Nidel.

On Wednesday, U.S. District Judge Mustafa Kasubhai will hold a remote procedural hearing to review a confidential settlement for people who believe they or their loved ones were harmed by J.H. Baxter’s pollution.

“The settlement is putting a fork in something that is not justice,” Nidel said. “Not even close to justice.” 

Prison time and pending payments 

J.H. Baxter President Georgia Baxter-Krause turned herself in to the federal detention center in SeaTac, Washington, on Oct. 1 to serve a 90-day sentence for violating the Clean Air Act.

An investigation by the federal Environmental Protection Agency found that workers at her company boiled 1.7 million gallons of contaminated water, releasing toxic steam into the air “like a stovetop pot left uncovered.” According to the investigation, they did this for at least 136 days without a permit — a move that saved the company the cost of proper disposal.

The Department of Justice ordered Baxter-Krause’s sentence and fined the company $1.5 million. Court documents filed in July show the company has begun paperwork to pay the fine.

Meanwhile, J.H. Baxter owes the state more than $375,000 in civil penalties and interest from a 2022 settlement — the same year it shut down and abandoned more than 500,000 gallons of chemicals. Contamination was so severe that the Oregon Department of Environmental Quality called in the EPA for help with a short-term cleanup of the most hazardous materials.

Experts who have worked on Superfund projects across the country and who came to Eugene to assist with J.H. Baxter told Lookout Eugene-Springfield it was among the most challenging sites they had encountered.

The EPA has already spent $11 million on the cleanup, but it has not released an estimate for the next phase.

Searching for environmental justice 

Meaningful payment for damaged property and other losses for residents has yet to come. J.H. Baxter, at 3494 Roosevelt Blvd., has long troubled those who lived nearby in west Eugene.

Since the early 2000s, residents and teachers raised concerns to the nonprofit organization Beyond Toxics about pollution’s impact on children’s health.

Nidel met policy advocates from Beyond Toxics when he came to town to meet the dog owner. Around that same time in 2021, soil sampling and the discovery of illegal activity at the facility prompted stronger government action, leading to the proposed — and now formal — Superfund designation.

This retrospective action, Nidel said, is part of an unsustainable system.

The Lane Regional Air Protection Agency, the Oregon Department of Environmental Quality and the city of Eugene shared oversight of J.H. Baxter’s air emissions, hazardous waste in water and soil, and wastewater, respectively. 

In recent City Council work sessions, local leaders have criticized ineffective enforcement and called for better collaboration between municipal and state agencies. Such enforcement is key to achieving environmental justice — which the EPA defines, in part, as fair involvement in the enforcement of environmental laws, regulations and policies.

But that involvement is harder to achieve after the fact — when contamination is fluctuating in an underground plume.

“It’s a huge problem when the regulators don’t make those companies behave in any way that resembles [safety],” Nidel said.

Instead of justice, he said, the community is left with “a legacy of soil and water contamination.”

This story was updated Oct. 20 to clarify that the EPA releases plan estimates, not full budgets, for some Superfund sites.