On April 22, DeSmog published a year-long investigation by reporter Justin Nobel into the practices of the environmental services company Lotus LLC, which operates a major West Texas disposal facility for radioactive oilfield waste. Nobel’s reporting revealed that the Lotus facility has at times struggled to safely manage the radioactive waste it receives, which comes not only from across the United States but is also imported from other countries. The investigation was based on correspondence with federal and state regulators, hundreds of pages of documents obtained via a Freedom of Information Act (FOIA) request, photographs of the site, and interviews with an industry source familiar with the Lotus disposal site.

While Lotus was at first cooperative during Nobel’s investigation — which included interviews and communications with Lotus director of global operations James Dillingham — the company began pushing back against the evidence uncovered in the investigation and threatening potential legal action should DeSmog publish it.

Since the article’s publication, Lotus has continued to pursue a variety of efforts to have the article and its photographs removed.

The latest incident involves Texas-based lawyer Shaun McCabe, who contacted Nobel claiming that he is being sued by Lotus for providing confidential information to Nobel and asking for a signed affidavit from Nobel “that states you know who your sources are and it was not me.”

DeSmog has confirmed that on May 21, 2021, Lotus filed a lawsuit against McCabe in state court in Texas. However, the complaint makes no explicit mention of DeSmog and claims that McCabe breached a nondisclosure agreement signed in 2018.

As part of Nobel’s investigation, DeSmog published photographs that appeared to show stockpiled radioactive wastes in rusted or degraded barrels and tanks at the Lotus site. The photographs were supplied by an industry source, who has requested that DeSmog not reveal their identity, who took them at the Andrews, Texas, facility in the time period of 2015 to 2016 – prior to the apparent 2018 date of McCabe’s nondisclosure agreement with Lotus.

Lotus has used multiple arguments to demand that DeSmog not publish, or delete, the photographs of its facility.

As Nobel wrote in April:

“[Lotus director of global operations] Dillingham stated the photos ‘are not representative of how Lotus, LLC manages waste. These photos only illustrate a single instance where material was received and was under process for disposal, which was within the parameters of our licenses and permits.’ Dillingham added, ‘Representing Lotus by way of publishing wording or photos in a manner that causes the public to conclude that material sent to our facility is or was handled otherwise will be considered libel. Accordingly, we will seek restitution under the law for personal and financial injury caused by any misrepresentation caused by this.’

Additionally, Dillingham supplied a response on behalf of his manager: ‘The pictures that are proposed to be presented in the article as previously poised are the property of Lotus LLC and are copyrighted and we don’t give permission to display those in any form or fashion and must be returned to us immediately. Additionally the entity or person who has conveyed these pictures to you or has somehow allowed them to become in your possession has violated the confidentiality clause they signed up for and their identity must also be revealed to us so that appropriate legal action may be conducted should these photos be publicly displayed and not returned or destroyed. You are requested to resolve this issue immediately so as to prevent further harm.’

Dillingham also stated that, ‘according to my manager, the photos you have provided are outdated and not an accurate representation of what is currently at the facility.’”

In late March, in the midst of the pandemic, Lotus invited Nobel, who is based in New York, to visit the West Texas facility himself to see its current conditions. However, the company retracted its offer when Nobel asked if DeSmog could instead send Texas-based freelance photographer Justin Hamel to tour the facility.

In April, DeSmog sent Hamel to take aerial photographs of the Lotus facility from a small plane he hired out of nearby Midland, as well as photos from the ground taken at Lotus’ corporate office and truck yard in Andrews. As revealed in DeSmog’s original article, Hamel’s photographs show what appeared to be significant amounts of stockpiled radioactive wastes held in rusty or damaged tanks or barrels stored directly on what appears to still be an unlined surface, potentially risking groundwater or surface contamination.

After the article’s publication, a lawyer representing Lotus sent a letter to Hamel alleging that his photographs were taken inappropriately — either in an unrecorded flight or using a drone, which is prohibited in Texas — and writing that: 

“we demand that you require that the article posted on DeSmog’s website be retracted and that all photographs taken by you of the Lotus plant be returned to Lotus within three business days. If not, we will recommend to Lotus that it take all available actions including seeking the recovery of civil penalties from you. We request that the following potentially critical evidence not be sold, destroyed, tampered or repaired: all photographs, all drones, all correspondence between you and Justin Nobel, and all records supporting your contention that the photographs were taken in a small airplane.”

Hamel confirmed to DeSmog that he never operated a drone during this assignment, and took all of the photos legally from public property or from the plane, which was contracted out of Midland, Texas, by a company that DeSmog believes operated in full compliance with the Federal Aviation Administration rules.

DeSmog stands by its original reporting by Nobel and Hamel, and will not be intimidated by Lotus’s efforts. We will continue investigating these issues.