•
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articles and Documents related to this Class Action Suit
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Abstracts
DuPont's Washington Works
Main Plant is located along the Ohio River in Washington, West Virginia,
approximately-seven miles southwest of Parkersburg, West Virginia.
PHOTO - New York Times.
The PFOA chemical
at the heart of this Class Action lawsuit is
Ammonium Perfluorooctanoate, commonly referred to as
C8, C-8, or APFO.
At this time in history, it is considered to be the PFOA derivative
of greatest concern and with the most wide-spread use.
CAS No: 3825-26-1
Molecular
Formula: C8-H-F15-O2.H3-N
Molecular structure:
Systematic Names:
Ammonium pentadecafluorooctanoate
Octanoic acid, pentadecafluoro-, ammonium salt
Synonyms:
Ammonium perfluorocaprilate
Ammonium perfluorocaprylate
Ammonium perfluorooctanoate
Fluorad FC 143
Pentadecafluoro-1-octanoic acid, ammonium salt
Perfluoroammonium octanoate
Perfluorooctanoic acid, ammonium salt
•
For Updates see FAN's
compilation of news articles and reports
|
Analysis
of PFOA in the blood of people living near DuPont's
West Virginia plant had levels 12 times higher than
U.S. background blood levels.
See
the Environmental Working Group's Analysis and Letter
to US EPA of
November 17, 2004 at
http://www.ewg.org/issues/PFCs/20041117/index.php
|
About
the Teflon chemical PFOA
PFOA is not only used to manufacture
Teflon, but is also a breakdown product of chemicals
used to coat food packaging, including fast food like
McDonald's, and stain-resistant coatings for couches,
carpets, and clothing. PFOA is broadly toxic. It does
not break down in the environment, and is considered
to be persistent over geologic time scales. It nearly
universally pollutes human blood and has a half-life
in the body of more than four years.
Ref:
Environmental Working Group
|
On April 12, 2002, Judge George W. Hill of
the Circuit Court of Wood County, West Virginia, granted citizens
the right to proceed with a Class Action lawsuit against Dupont
for the contamination of their drinking water with Ammonium perfluorooctanoate
(C8) originating from DuPont's Washington
Works facility; and
also against the Little Hocking Water
Association for providing drinking
water contaminated with C-8 to aproximately 12,000 residences and
businesses in Washington County, Ohio.
This Class Action has created a drama of Shakesperian proportion.
The genesis of the Class Action arose from the
allegation that DuPont's dumping of C8 in its Dry Run Landfill in
Wood County, West Virginia, was responsible for the "wasting
disease" that killed cattle on a farm near the landfill in
the 1980s. The information generated from
the lawsuit against DuPont for the cattle deaths revealed that
local drinking water supplies were contaminated with C8. According
to a 2003 newspaper report:
... A mysterious wasting disease killed 280 cattle on the Tennants'
farm near the Dry Run Landfill in the 1980s. The cause of the
cattle deaths were never conclusively associated with chemical
contamination from DuPont, but the company settled with the Tennant
family for an undisclosed amount in light of the allegations.
Jim and Della Tennant claim that family members who worked with
the herd and lived near the property also began to fall sick with
sinus and respiratory problems and skin and other cancers. And,
when the Tennants asked their attorneys to look into the cause
of the illnesses and pursue action against DuPont, C8 is what
they found.
In 1984 they sold an adjoining portion of their land to DuPont
and it became the Dry Run Landfill. They moved from the location
within seven months, but maintain rental property at the site.
Jim Tennant claims a difference in the land was noticeable within
a year of the landfill acquisition.
"Shortly after, there were no minnows in the stream. There
were deer carcasses lying around, and things were dying,"
Jim Tennant said. "There were problems."
But, those weren't the only problems the family would observe.
After their herd of cattle began to die off, they claim the family
members who worked with the cattle and lived near the farm were
also becoming seriously ill.
... After 40 years of successful cattle ranching, they believe
it was chemical contamination that devastated the herd within
a span of 10 years.
The terms of the Tennants' settlement remain secret, and as a
result of that action, they are not eligible as class members
in the pending C8 suit.
Ref: Examining
the water we drink: Family's lost herd led to revelations about
C8.
By Callie Lyons. The Marietta Times (Ohio). September 27, 2003.
One
resident in the Class Action spoke of her concerns about her 6-year
old daughter:
"We
thought her teeth came in without enamel," Cochran said.
Lauren had to have her teeth removed after they failed to develop
properly. Recently Cochran has discovered that several other families
in her area have experienced the same
problem...
Ref:
September 27, 2003. The Marietta Times (Ohio). Examining
the water we drink: Concerns about C8 linger. By
Callie Lyons
DuPont and West Virginia
regulatory officials admit to destroying documents:
In a letter to the judge, DuPont acknowledged that Gerald R.
Kennedy, the company's lead toxicologist on C8 issues, had destroyed
"written and electronic documents'' about the chemical.
Ref: The Columbus Dispatch (Ohio). May 8,
2003. WEST
VIRGINIA RULING. JUDGE: DUPONT CHEMICAL IS TOXIC. By Geoff
Dutton.
... During her deposition on June 6 and 7,2002, [WV Department
of Environmental Protection Science Advisor] Staats testified
that she did not produce some documents in response to the Subpoena
because she had destroyed or caused the destruction of certain
documents which would otherwise have been subject to the Subpoena.
During the hearing on June 12, 2002 counsel for Staats and the
WVDEP [West Virginia Department of Environmental Protection] conceded
that Staats and the WVDEP have destroyed and otherwise failed
to save and preserve various records, documents, including drafts,
correspondence, emails and other documents relating to the WVDEP’s
investigation of C-8 all of which were subject to the Subpoena.
Staats and the WVDEP further conceded that such destruction of
documents and failure to produce in accordance with the Subpoena
was the result of Staats and the WVDEP’s standard practice
and policy of destroying documents they anticipate might be the
subject of a subpoena in this litigation...
- see more details below.
Ref: June 25, 2002. INJUNCTION
ORDER DIRECTED TO DEE ANN STAATS, PH.D. AND THE
WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION.
The president of the Environmental Working Group, Kenneth A.
Cook, wrote to the Governor of West Virginia about Department
of Environmental Protection science adviser Dee Ann Staats stating
she "made a career as an expert witness testifying against
the concerns of communities fighting chemical and oil company
pollution prior to coming to work for the state of West Virginia."
Ref: March 13, 2003. Charleston Gazette
(West Virginia). C8 Study
'Tainted,' Group Says Governor Urged to Appoint an Independent
Panel. By Ken Ward Jr.
DuPont's revolving door
for their lawyers on C8 issues. They now work for the West Virginia
Department of Environmental Protection:
It has come to our attention that Joe Dawley.
formerly with the law firm of Spilman
Thomas & Battle in Charleston. West Virginia. accepted
the request of WVDEP's [West Virginia Department of Environmental
Protection] Secretary, Michael Cailaghan. to become the
new General Counsel for WVDEP... As you are aware. Mr.
Dawley was working as one of the attorneys representing E.I. duPont
de Nemours and Company ("DuPont") in connection with
ongoing C-8 issues and in defense of the claims asserted
against DuPont in the referenced lawsuit. In particular, you may
recall that Mr. Dawley represented DuPont in at least one meeting
between WVDEP and Plaintiffs in the referenced lawsuit to discuss
issues relating to WVDEP's compliance with the Wood County's Circuit
Court's Order prohibiting WVDEP from destroying any C-8 documents
and requiring WVDEP to try to retrieve electronic documents previously
deleted from Dr. Dee Ann Staats' files. Mr. Dawley also appears
to have had some Ievel of involvement while at Spilman in assisting
DuPont in the negotiation and drafting of the November 2001 Consent
Order entered between the State and DuPont on C-8 matters ( the
"Consent Order"). (See Attachment B) We understand that
Mr. Dawley was approached by Secretary Callaghan to become General
Counsel for WVDEP while Mr. Dawley was working at Spilman.
We further understand that another former
Spilman lawyer. Stephanie Timrnermeyer. also
recently left that law tirm to accept the position
as Director of WVDEP's Division of .Air Quality
after Ms . Timmermeyer also had been working
directly for DuPont on C-8 issues. and also
apparently had worked for DuPont in negotiating and drafting the
Consent Order... We understand that the Director
of WVDEP's Division of Water resources. Allyn Turner.
also is a former Spilman attorney...
Ref: October 25, 2002. Letter from Robert
A. Bilott of Taft, Stettinius & Hollster, 425 Walnut Street,
Cincinnati, Ohio 45202; to Perry D. McDaniel, Esq, West Virginia
Department of Environmental Protection, Office of Legal Services,
1356 Hansford Street, Charleston, WV 25301.
Re: DuPon/C-8 Issues: Jack W Leach. et al. v. E. I. duPont de
Nemours and Company and Lutbeck Public Service District Circuit
Court of Wood Ctv, K'V. Civil Action No. 0 1 -C-608.
Note: Timmermeyer
and Dawley have both recused themselves from C8 issues at DEP.
Ref: March 13, 2003. Charleston Gazette
(West Virginia). C8 Study
'Tainted,' Group Says Governor Urged to Appoint an Independent
Panel. By Ken Ward Jr.
Regulators protect Dupont
with a "safe level" of C8 in drinking water.
The “safe level” standard for C-8 has been a rather
fluid number that periodically increases exponentially. Initially,
the “safe level” was said to be 1 ppb, which was DuPont’s
internal Community Exposure Guideline. This number eventually
changed after detections of C-8 in the Little Hocking Water Association
wells far exceeded it. Later, the U.S. EPA Consent Order with
DuPont cited 14 ppb as the interim "action level" for
C-8. The Little Hocking Water Association has a monitoring well
which has C-8 levels that are more than twice 14 ppb. Now, based
on the announced CAT Team findings, the “safe level”
is 150 ppb.
Ref. and see for more detail:
LITTLE
HOCKING WATER COMMENTS. OHIO ENVIRONMENTAL
PROTECTION AGENCY MEETING. COLUMBUS, OHIO. July 24,2002.
Also see analysis
by Kristina Thayer, Ph.D. of the Environmental Working Group
Some of DuPont's practices
at its West Virginia facility identified for contaminating the area's
drinking water supplies:
The Letart Landfill is located just
north of the town of Letart in Mason County, West Virginia (Figure
4.0). The landfill covers approximately 17-acres of a 205-acre
parcel of land owned by DuPont Washington
Works. It was in operation firom the early 1960s to 1995.
The landfill was operated and closed under West Virginia Solid
Waste /National Pollutant Discharge Elimination System Permit
No. WV 0076066. Letart Landfill received waste was from the Fluoropolymcr
manufacturing process at the plant that consisted primarily of
scrap product, scrap metal, wood pallets and bins, and miscellaneous
trash. Approximately 5,000,000 pounds of
waste per year were disposed in the landfill. This waste
is believed to be the source of C-8 in the historical groundwater
and surface water samples collected fiom on-site locations. The
Letart Landfill was permanently closed by installing an engineered
multi-layer geosynthetic and soil cap (DuPont, 2001).
The Dry Run Landfill is located
west of the town of Lubeck, in Wood County, West Virginia (Figure
5.0) and is about eight miles southwest of the Washington Works
main plant and the Local Landfill. The Dry Run Landfill covers
approximately 17-acres of a 535-acre parcel of land
owned by DuPont. The landfill began operation in 1986 and
is still active at present. The landfill is operated under West
Virginia Solid Waste /National Pollutant Discharge Elimination
System Permit No.WV 0076244. The landfill was constructed within
the drainage basin of Dry Run, a tributary of the North Fork of
Lee Creek, which is a tributary of the Ohio River. The Dry Run
Landfill has no compacted or synthetic bottom liners. However,
natural soil present under the landfill material is composed of
clay and weathered shale. The Dry Run Landfill receives waste
from the main plant consisting of non-hazardous waste including
scrap product, scrap metal, wood pallets, fly ash and bins, and
miscellaneous trash. Approximately 50,000,000
pounds of waste per year have been disposed in the landfill. Currently,
the C-8 source is believed to be the sludges from the closure
of the main plant anaerobic digestion ponds that were landfilled
at Dry Run in 1988. The Dry Run Landfill remaining capacity
calculations for 2001 show 4.4 years of remaining life on the
existing cell based on a 128,000 yd3/yr net fill volume consumption
(DuPont 2000).
Riverbank Landfill: The Riverbank
Landfill is about 4,500-feet long and lies along the northern
edge of the site near the Ohio River. It was operated between
1948 and the late 1960s and received powerhouse ash, incineration
ash, plastics, rubble, and plant trash. After closure, it was
covered with 6 to 35 inches of soil. Currently, the Riverbank
Landfill is covered with dense vegetation (on the sloped area)
or by buildings and pavement in the manufacturing area.
Anacrobic Digestion Ponds: Three
former digestion ponds are co-located within a portion of the
Riverbank Landfill. One pond dates from the 1950s and two others
from the 1970s. The ponds received waste from the fluorocarbon
manufacturing process (including C-8) until 1988, when the pond
contents and upper few feet of clay liner and pond berm material
were removed and disposed of off-site. The pond area was backfilled
and capped with topsoil, and the area is currently vegetated with
grass.
Polyacetal Waste Incinerators: The
former Waste Incinerators consisted of two brick-lined pits in
the western portion of the manufacturing area. The Waste Incinerators
operated between 1959 and 1990. The Waste Incinerators have been
excavated and backfilled with clean soil.
Burning Ground: The Burning Ground
is located in the central portion of the manufacturing area and
was operated between 1948 and 1965. Since 1990, the Burning Ground
has been leveled, backfilled with clean fill and gravel, and covered
by buildings and asphalt.
The Local Landfill is located immediately
adjacent to the main plant off the southern perimeter. The Local
Landfill consists of three separate closed cells located on the
heavily wooded 250-acre site. The cells were operated from 1964
to the middle 1380s under West Virginia/National Pollutant Discharge
Elimination System (WVNPDES) Permit No. 0076538. The permit is
currently undergoing renewal and is expected to be effective in
January 2002. Materials landfilled included scrap product, scrap
metal, wood pallets and bins, and Powerhouse
ash. Approximately 144 tons of waste per year were disposed
in the landfill. Powerhouse ash comprised about 70 percent of
the total waste. The specific source of C-8 in historical groundwater
and surface water samples collected from on-site locations has
not yet been determined. The cells were closed and covered with
approximately two feet of low permeability soil.
Ref: January 2002. DuPont. COMPILATION
OF HISTORICAL C-8 DATA.
DUPONT WASHINGTON WORKS MAIN PLANT AND LANDFILLS. Project
KO: D6WW7423. (171 pages)
DuPont's description of
APFO (C8) Use:
DuPont uses APFO as a reaction aid in the production of polytetrafluoroethylene
(PTFE)
and tetrafluoroethylene (TFE) co-polymers. The process utilized
at DuPont’s Washington Works for making PTFE and co-polymers
consists of polymerizing TFE (and other co-monomers if desired)
in an aqueous media with a small amount of APFO to aid in the
reaction.
Following the polymerization step, the polymer dispersion is either
dried to remove water and APFO or concentrated (removing some
of the APFO), stabilized and sold as an aqueous dispersion. The
dried polymer contains very little, if any, APFO. The APFO removed
from the polymer is recovered for recycle, captured and destroyed
off site in an incinerator, captured and sent to an offsite industrial
landfill, and/or emitted to air or water at the Washington Works.
The stabilized polymer dispersions are sold by DuPont to industrial
customers (both in the US and outside the US) for a variety of
uses, internally transferred to the DuPont Spruance Plant for
the production of Teflon@ fibers and PTFE coated synthetic fibers,
or internally transferred to the DuPont Parlin Plant for the production
of Teflon@ Finishes. A small amount of non-hazardous waste polymer,
water, APFO and other additives generated at Washington Works
is treated in a wastewater treatment facility at DuPont’s
Chambers Works. This material is either emitted in the Chambers
Works water discharge or captured on carbon and landfilled in
a secure landfill. The internal process at the DuPont Spruance
Plant to produce Teflon@ fibers involves, for most of the product,
a “sintering” step in which the APFO contained in
the product is destroyed by the following reaction: CF3(CF2)6C0O'NH4+
-arrow- CF3(CF2)5CF2H + C02 +NH3
Ref. and see for more
detail: Voluntary
Use and Exposure Information Profile Ammonium Perfluorooctanoate
(APFO) (revised January 2001).
DuPont's Washington Works Main Plant
is located along the Ohio River in Washington, West Virginia, approximately-seven
miles southwest of Parkersburg, West Virginia.
The Little Hocking Water Association
well field is located in Ohio on the north side of the Ohio
River immediately across from Washington Works facility.
DuPont Site where APFO is used as a reaction
aid:
Washington Works, Route 892, Washington, WV 26181
DuPont Sites where APFO containing products
made at Washington Works are processed:
Parlin Plant, Cheesequake Road, Parlin, NJ 08859
DuPont Spruance Plant, 5401 Jefferson Davis Hwy., Richmond, VA 23234
DuPont Site which disposes of waste containing
APFO:
Chambers Works, Rte. 130, Deepwater, NJ 08023
Some uses and exposure routes
for the general population from PFOS-related chemicals:
Applications |
Use |
2000: Estimated
Global production |
Surface
Treatment
|
personal apparel, home furnishings,
leather, fabric/upholstery, carpet, automobile interiors
These applications are undertaken in industrial
settings by customers such as textile mills, leather tanneries,
finishers, fiber producers, and carpet manufacturers and also
used in aftermarket treatment by the general public or professional
applicators |
2,160 metric tons |
Paper Protection
|
food contact applications
(plates, food containers, bags, and wraps)
non-food contact applications
(folding cartons, containers, carbonless forms, and masking
papers)
The application of sizing agents is undertaken
mainly by paper mills and, to some extent, converters who
manufacture bags, wraps, and other products from paper and
paperboard |
1,490 metric tons |
Performance
Chemical |
fire fighting foams, alkaline
cleaners, floor polishes, photographic film, denture cleaners,
shampoos, chemical intermediates, coating additives, carpet
spot cleaners, and as an insecticide in bait stations, mining
and oil well surfactants, acid mist suppressants for metal
plating and electronic etching baths, photolithography, electronic
chemicals, hydraulic fluid additives.
Note from FAN:
PFOS and PFOA chemicals were approved for use in pesticides
by US EPA. Several were used as "List 3 Inerts."
The public is denied the right to know what specific pesticides
"inerts" are in, or on what food crops they were
used. "Inerts" can account for over 99% of a pesticide
product. EPA only mandates that the "active ingredient"
be identified. Since 2000, EPA has said it would remove PFOS
and PFOA from use as "inerts" in pesticide products.
However, EPA has stated the insecticide, Sulfluramid,
would be allowed for use in bait stations up until the year
2016. |
831 metric tons
Of this volume, approximately 151 metric tons will be used in
fire fighting foams. |
Ref: November 21,
2002. Hazard
Assessment of Perfluorooctane Sulfonate (PFOS) and its Salts.
Organisation for Economic Co-operation and Development. Environment
Directorate. Joint Meeting of the Chemicals Committee and the
Working Party on Chemicals, Pesticides and Biotechnology. ENV/JM/RD(2002)17/FINAL.
- Page 13. |
A multi-city study designed by Battelle Memorial Institute of
Columbus and analyzed at Centre Analytical Laboratories Inc.,
State College, Pa., indicates small, but measurable, quantities
of PFOA residue can be found in such foods as milk,
ground beef, bread, fruits and vegetables, whether or not
the items were obtained in a city with known exposure to the manufacturing
chemical via plant emissions.
Ref: September 27, 2003. The Marietta Times
(Ohio). Examining
the water we drink: Local C8 exposure tough to sort out. By
Callie Lyons.
Of special note:
• On
May
16, 2000, 3M annnounced that
"it
is phasing out of the perfluorooctanyl chemistry"
after internal studies raised concerns about its persistance and
toxicity. However, DuPont
continues to use C-8 and in October 2002 it began to make C8 at
its new facility in Fayetteville, North Carolina. Historically,
DuPont purchased C-8 from 3M (Minnesota Mining and Manufacturing
Company) for use as a raw material in its various fluoropolymer
production processes, including the manufacture of Teflon@.
• The Environmental Working Group
(EWG) has been actively engaged in the PFOA issue. They published
a comprehensive online report
on Perfluroinated Chemicals that includes a searchable
database to hundreds of documents.
Some correspondence of the
law firm representing plaintiffs in the Class Action and some Civil
Court Rulings
November 1, 2001
- 4 pages
Letter from Robert A. Bilott of Taft, Stettinius
& Hollster, 425 Walnut Street, Cincinnati, Ohio 45202; to
governmental agencies. Re:
Leach, et al. v. E.I. duPont de Nemours and Company et al.
(Circuit Court of Kanawha Cty, WV, Civil Action No. 01 42-25 18)
Public Health Concern Involving Drinking Water in Wood Countv.
West Virginia
... As indicated in the attached summary chart, exhaustive, detailed
analysis of the health
studies conducted to date with respect to APFO using standard
USEPA risk assessment
methodology and DuPont's own data confirm that no "acceptable"
level of APFO in human
drinking water can be scientifically or realistically justified
at any level any higher than 0.2 parts
per billion (ppb) of APFO. As indicated in the attached chart,
the factors used in deriving this
0.2 ppb level are based upon the exact same data and analysis
that has been used by DuPont and the 3M Company in previous, similar
attempts to determine a "safe" level for APFO and PFOS
in drinking water. As you most-likely are already aware, APFO
levels have consistently and continuously exceeded 0.2 ppb in
the LPSD drinking water supply since at least 1984, with DuPont's
own lab confirming APFO levels as high as 3.9 ppb in the early
1990s...
• Included in this document is the
"Drinking Water Health Advisory determination for Ammonium
Perfluorooctanoate (APFO)"
March
8, 2002 - 4 pages
Letter from Robert A. Bilott of Taft, Stettinius
& Hollster, 425 Walnut Street, Cincinnati, Ohio 45202; to
governmental agencies. Re:
Public Health Concern Involving C-8 Drinking Water Contamination
In
West Virginia And Ohio
... our clients are concerned that there
is a current, imminent, and substantial threat to their health
based upon the past and current presence of excessive levels of
C-8 in local drinking water supplies. We have asked the Circuit
Court in West Virginia to order, among other things, appropriate
medical monitoring for those who have been exposed to C-8 in their
water...
... As indicated in the attached document prepared by Tetra
Tech, which has thoroughly
reviewed the same information referenced and relied upon in DuPont’s
Environ report, our
clients believe that the 14 ppb number selected by Environ is
in error and substantially
underestimates the potential health threat to those drinking C-8
contaminated water. The current data actually confirms that C-8
levels in excess of 0.3 ppb in human drinking water may present
an imminent and substantial endangerment to human health and the
environment. Thus, on behalf of our clients, we request
that your agency consider the issues raised in the attached document
from Tetra Tech before agreeing to any Order with DuPont that
does not require DuPont to immediately provide alternate drinking
water to those exposed to C-8 levels in excess of 0.3 ppb.
• Included in this document is the Tetra
Tech, Inc., document titled: Discussion points relating to the
assessment of health risk from exposure to Ammonium perfluorooctanoate
(PFOA).
March 18, 2002 - 3
pages
Letter from Robert A. Bilott of Taft, Stettinius
& Hollster, 425 Walnut Street, Cincinnati, Ohio 45202; to
2 West Virginia governmental agencies. Re:
Consent Order Between WV and DuPont (Order No. GWR-2001-019):
DuPont's January 2002 Report Entitled "Compilation of Historical
C-8 Data DuPont Washington Works Main Plant and Landfills"
... We understand that, under the terms of the referenced Consent
Order entered between the State of West Virginia and DuPont on
November 14,2001, DuPont is required to submit to the Groundwater
Investigation Steering Team ("GIST") a Report providing
a "compilation of all available ground watedsurface water
monitoring and hydrogeologic characterization data for" DuPont's
Washington Works facility and Local, Letart, and Dry Run Landfills,
as described in Table A-1 .a of the Consent Order. We have reviewed
a copy of a January 2002 document made available to us by WVDEP
on March 7. 2002, prepared by DuPont entitled "Compilation
of Historical C-8 Data DuPont Washington Works Main Plant and
Landfills," which we assume is the report that DuPont was
required to prepare in this regard. Upon
review of the data summarized in that Report, it becomes evident
that the Report inexplicably omits references to a substantial
amount of C -8 data within DuPont's possession...
March
26, 2002
Letter from Robert A. Bilott of Taft, Stettinius
& Hollster, 425 Walnut Street, Cincinnati, Ohio 45202; to
governmental agencies.
Re: Jack W. Leach, et al. v. E.I. duPont de Nemours and Company
et al. (Circuit Court of Wood Cty. WV. Civil Action No. 01-C-608).
... the law firms of Hill, Peterson, Carper, Bee & Deitzler,
PLLC and Winter Johnson & Hill PLLC of Charleston, West Virginia,
are representing the Plaintiffs in a lawsuit currently pending
against E.I. duPont de Nemours and Company
("DuPont") and the Lubeck Public Service District ("LPSD")
in State Court in West Virginia in which claims have been
asserted against DuPont and the LPSD in connection with contamination
of human drinking water supplies with ammonium perfluorooctanoate
('"C-8") originating from DuPont's Washington Works
facility in Wood County, West Virginia. On Friday, March
22,2002, Judge Hill of the Wood County Circuit Court agreed to
certify Plaintiffs' claims to proceed as a class action against
DuPont and the LPSD on behalf of all persons whose drinking water
is or has been contaminated with C-8 attributable to releases
from DuPont's Washington Works facility. (This class currently
includes thousands of Ohio and West Virginia residents.) Our law
firms will, therefore, be pursuing the Plaintiffs' claims on behalf
of all members of that class of individuals...
Our law firm has been receiving and reviewing a substantial amount
of internal correspondence and internal, unpublished reports from
DuPont and 3M concerning C-8 since the surnmer of 2000, when our
law firm began receiving C-8 documents from DuPont in connection
with discovery related to claims that C-8 being discharged from
DuPont's Dry Run Landfill in Wood County, West Virginia, was killing
hundreds of head of cattle who were drinking from the Dry Run
Creek. As
of today's date, we have received and reviewed approximately 185,000
pages of documents from DuPont and 3M relating to the toxicity
and effects of C-8...
... our consultants' assessment of the available
C-8 toxicology data differs substantially from the information
that the CAT Team apparently has been provided to date by DuPont,
as memorialized in the
analysis set forth in the January 2002, report from
Environ that was prepared for DuPont. As indicated
in our prior correspondence, we believe that the available C-8
data does not justify or support the analysis advocated by DuPont
through the Environ report. Because the
United States EPA, nevertheless, agreed to use the 14 ppb standard
advocated in that Environ report in its recent Consent
Order with DuPont, we are concerned that your agencies may not
be receiving all of the available C-8 data...
April 10, 2002:
IN THE CIRCUIT COURT OF WOOD COUNTY, WEST VIRGINIA
JACK W. LEACH, et al.,
PIaintiffs,
v.
E. I. DU PONT DE NEMOURS AND COMPANY
and LUBECK PUBLIC SERVICE DISTRICT,
Defendants.
CIVIL ACTION NO. 01-C- 608
(Judge George W. Hill )
ORDER ON CLASS CERTTFICATION
AND RELATED MOTIONS
... Based upon the oral argument of the parties during a hearing
on all of these Motions on March 22, 2002, along with careful
consideration of all of the filings of the parties on each of
these issues, including all submitted affidavits, the Court herby
rules as follows:
1) the Court GRANTS Plantiffs' Motion for Class Certification
and hereby CERTIFIES this case to proceed as a class action on
behalf of a class of all persons whose drinking Ivater is or has
been contaminated with amiionium perfluorooctanoate (aka "C-8")
attributable to releases from DuPont's Washington Works plant
(hereinafter "the Class") with respect to all issues
relating to Defendants' underlying liability and Plaintiffs' claims
for equitable, injunctive, and declaratory relief, including liability
for punitive damages; all damage issues iiivolving any deterimination
of individual harm of the Class members and the amount of any
punitive damages are hereby STAYED and RESERVED for later litigation,
pursuant to Rule 23 of the West Virginia Rules of Civil Procedure;
2) the Court DENIES DuPont's Relief Motion; and
3) the Court DENIES Plaintiffs' Motion For Judgment on the Pleadings
Against DuPont.
The undisputed procedural background, undisputed findings of fact,
and the Court's conclusions of law supportiiig each of these rulings
is summarized below...
III. FINDINGS OF FACT (Excerpt)
Plaintiffs submitted to the Court a lengthy statement of facts.
Neither DuPont nor LPSD
submitted any statement of facts for the Court to consider. The
Court, therefore, finds the following facts in support of its
rulings on the Motions at issue:
This case involves claims arising froin the alleged contamination
of human drinking wrater
supplies with, among other things,[2] a chemical known as ammonium
perfluorooctanoate (a/k/a APFO/PFOA/ FC-143/C-8) (Chemical Abstract
Services # 3825-26-1) (hereinafter "C-8"). C-8 is a
chemical DuPont has used at its Washington Works facility in Wood
County, West Virginia (the Washington Works") since approximately
1951. Historically. DuPont purchased C-8 from the Minnesota Mining
and Manufacturing Company ("3M") for use as a raw material
in its various fluoropolymer production processes, including the
manufacture of Teflon@. C-8-containing wastes from the Washington
Works have been discharged into the air, the Ohio River, various
landfills, and soils and groundwater at the Wasliington Works.
Although C-8 is identified and regulated as a toxic or hazardous
substance in a number of other jurisdictions, none of the environmenttal
discharge permits ever issued to DuPont for its Washington Works
by any Federal or State agency have ever contained any limits
on DuPont's releases of C-8 into the environment. Consequently,
DuPont has released C-8 into the environment from its Washington
Works since the early 1950s without any govermental permit limits
or restrictions of any kind. Although 3M annnounced in May of
2000 that it would stop making C-8 after internal studies raised
increasing concerns about the biopersistance [3] and toxicity
of the chemical. DuPont continues to use C-8 and recently announced
that it would begin to make its own C-8 at a DuPont plant in North
Carolina...
April 15, 2002
Letter from CHRISTOPHER
D. NEGLEY, ASSOCIATE COUNSEL, West Virginia Department of Environmental
Protection; to Robert A. Bilott of Taft, Stettinius & Hollister
LLP
I have the opportunity to discuss your letters of March 26, 2002
and March 29,2002 with
DEP staff members. Please allow this letter to serve as the DEP’s
answer. Initially, you asked whether the state of West Virginia
intends to establish a second laboratory to verify the C8 water
testing. The answer to that question is no. Exygen,
as you are probably aware, is the only laboratory in the United
States that can analyze the results of the C8 testing to approved
standards. Furthermore, the state of West Virginia has
independently certified the Exygen lab after a rigorous QAQC inspection
by the DEP’s Office of Water Resources. As a final check,
sampling is always done in the presence of DEP employees for consistency
purposes. Based on these factors, the DEP sees no reason at this
time to establish its own laboratory.
As a second matter, you have requested representation at the upcoming
CAT toxicologists
meeting for an expert of your choosing. As you know, this would
require a modification to the
Consent Order. I do not see any benefit in modifying the agreement
at this time for this request. However, the CAT is interested
in reviewing any information that you may have in your possession
that will aid them in their determination. In that light, please
contact me if you desire to have your expert speak to the panel.
I have been authorized to allow your expert
a small window of time to share any information he or she
may have on this issue. ...
April 19, 2002
Letter from Robert A.
Bilott of Taft, Stettinius & Hollister LLP, to Christopher
D. Negley, Associate Counsel, West Virginia Department of Environmental
Protection
This letter responds to your letter of April 15,2002, responding
to my letters of March 26
and March 29,2002. Based upon your letter, we understand that
the State of West Virginia does not intend to take any steps to
independently verify any of the C-8 results obtained by DuPont's
contractor, Exygen. Thus, we understand
that the State of West Virginia does not intend to implement any
mechanism through which any member of the public can independently
verify any of the C-8 results obtained by DuPont's contractor,
even though we understand that the sampling methodology that currently
is being used by Exygen has been made available to the State,
and that the State could take those steps necessary to arrange
for independent verification of Exygen's results.
Second, with respect to our request to appoint
a representative to participate as a member
of the C-8 Assessment of Toxicity Team ("CAT Team")
under the referenced Consent Order, this confirms our understanding
that our request has been denied. Rather than being offered
any opportunity to participate in any substantive aspect of the
C-8 CAT Team proceedings, we understand that we have been asked
to, instead, voluntarily share whatever information we "may
have in our possession" that "will aid" the CAT
Team "in their determination." ...
June 25, 2002
IN THE CIRCUIT COURT OF
WOOD COUNTY, WEST VIRGINIA
JACK W. LEACH, et al., Plaintiffs, V. CIVIL ACTION NO.: 01-C-
608 (Judge Hill)
E.I. DU PONT DE NEMOURS AND COMPANY,
and LUBECK PUBLIC SERVICE DISTRICT, Defendants.
INJUNCTION ORDER DIRECTED TO DEE ANN STAATS,
PH.D. AND THE
WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
On June 12,2002, the plaintiffs appeared by their counsel R.
Edison Hill, Robert A. Bilott.
and Lany A. Winter, defendant E.I. Du Pont De Nemours and Company
appeared by its counsel, Laurence F. Janssen, Charles L. Woody
and Heather Jones, defendant Lubeck Public Service District appeared
by its counsel, John R. McGhee and Richard A. Hayhurst, and the
deponent Dee .4nn Staats, Ph.D. and the West Virginia Department
of Environmental Protection appeared by their counsel Christopher
Negley for a telephonic hearing on plaintiffs'
motion to enjoin the West Virginia Department of Environmental
Protection ("WVDEP") and Dee Ann Staats, PH.D. ("Staats")
from destroying records relevant to the C-8 investigation.
Plaintiffs have argued in essence that Staats and the WVDEP failed
to comply with this Court's Civil Case Subpoena issued on June
6, 2002 ("Subpoena") which required Staats to produce
to plaintiffs at her deposition on June 6, 2002 all documents
and tangible things in her possession, custody and control which
were described in an attachment to the Subpoena. During
oral argument. counsel for Staats and the WVDEP confirmed that
Staats did not produce all of the documents described in the attachment
to the Subpoena in part because some of those documents were destroyed.
Findings of Fact:
... 4. During her deposition on June 6 and 7,2002, Staats testified
that she did not produce
some documents in response to the Subpoena because she had destroyed
or caused the destruction of certain documents which would otherwise
have been subject to the Subpoena. During the hearing on June
12, 2002 counsel for Staats and the WVDEP conceded that Staats
arid the WVDEP have destroyed and otherwise failed to save and
preserve various records, documents, including drafts, correspondence,
emails and other documents relating to the WVDEP’s investigation
of C-8 all of which were subject to the Subpoena. Staats and the
WVDEP further conceded that such destruction of documents and
failure to produce in accordance with the Subpoena was the result
of Staats and the WVDEP’s standard practice and policy of
destroying documents they anticipate might be the subject of a
subpoena in this litigation. Staats argued that it has been her
routine practice to destroy drafts, documents and email correspondence
for many years particularly when she anticipated such documents
might be subpoenaed. She further argued that she is not required
by law to produce her records for this litigation, notwithstanding
the service of the Subpoena, and that in the absence of an injunction
she intends to continue her routine practice of destroying documents
and email correspondence relating to the JWDEP’s investigation
of C-8.
5 . Staats and the WVDEP further argue that since she is not a
“party” to this litigation,
she is beyond the jurisdiction of this Court and therefore not
subject to its orders.
Conclusions of Law:
1. ... Staats’ arguments regarding the lack of jurisdiction
over her are meritless.
2. The admitted practice of Staats and the WVDEP of destroying
documents which she
anticipated would be subpoenaed in this litigation constitutes
obstruction of justice in this Court which is subject to the inherent
power of this Court to police and punish.
It is therefore accordingly. ORDERED, ADJUDGED
and DECREED that:
1. Dee Ann Staats, Ph.D. and the WVDEP are enjoined from destroying
any and all documents and things related to the WVDEP’s
investisation of C-8. including but not Iimited to the documents
and things plaintiffs identified in the attachment to the Subpoena
and all notes and draft reports prepared and/or possessed by Staats,
TERA and the WVDEP and all persons under the control of Staats
and the WVDEP.
2. Dee Ann Staats, Ph.D. and the WVDEP are enjoined from destroying
emails and are ordered to preserve both their internal computer
data relating to the investigation of C-8, and all such data stored
not only on WVDEP desktop and laptop computers, but any and all
personal laptop computers, including but not limited to the personal
laptop computer of Staats.
3. Plaintiffs are hereby authorized to engage computer experts
to be selected and paid
by the plaintiffs to examine the laptop computers and in-house
computers utilized by Staats and the WVDEP in order to retrieve
any and all information pertaining to C-8 that has been deleted
or for which attempts have been made to delete the data and/or
information, and Staats and the WVDEP shall immediately make all
such laptop computers and in-house computers available to plaintiffs
and their experts for such document retrieval purposes upon plaintiffs'
request.
July 22, 2002
Letter from Robert A.
Bilott of Taft, Stettinius & Hollister LLP, to US EPA Region
III and Region V officials. Re: Request To Speak With USEPA/ATSDR
Members Of CAT Team
Regarding C-8 Issues
As you are aware, we have asked on several occasions for the
opportunity to speak with
USEPA's and ATSDRs representatives to the C-8 Assessment of Toxicity
Team ("CAT Team") established under the Consent Order
between E.I. duPont de Nemours and Company ("DuPont")
and the State of West Virginia. The CAT Team met in Cincinnati
on May 6-7, 2002, for the purposes of selecting "screening
levels" for C-8 in environmental media and announced "screening
levels" for C-8 in air and soil later that week.
As of today's date, we have not received any confirmation from
you that we may proceed with discussions with any of USEPA's or
ATSDRs representatives to the CAT Team... Please confirm
as soon as possible, in writing, whether USEPA or ATSDR will agree
to either: (1 ) allow us to speak informally with any of the USEPA
or ATSDR members of the CAT Team with respect to C-8 issues; or
(2) agree to produce any of the USEPA or ATSDR CAT Team members
for a formal deposition to discuss such matters. in addition to
agreeing to respond to a subpoena for documents possessed in connection
with the C-8 issues.
October 29, 2002
- 119 pages
Letter from Robert A. Bilott of Taft, Stettinius
& Hollster, 425 Walnut Street, Cincinnati, Ohio 45202; to
Ohio governmental agencies. Re:
Emissions Of Ammonium Perfluorooctanoate (C-8) Into Ohio Air From
DuPont's Washington Works Facilitv In Wood County, West Virginia
... Although C-8 is not specifically regulated in either West
Virginia or Ohio in terms of air emissions, Year
2000 air emissions modeling data generated by DuPont and the State
of West Virginia's Department of Environmental Protection indicate
that the emissions of C-8 from DuPont's Washington Works have
resulted in concentrations of C-8 in the air over communities
in Ohio at levels far exceeding all known regulatory standards
for C-8 air emissions. More specifically, our research
to date indicates that those jurisdictions that actually have
established regulatory standards for C-8 in air consistently have
adopted standards of between 0.01 mgh3 and 0.1 mg/u3 as the appropriate
safety level for C-8 in air (typically ''healthy''worker populations).
(See Exhibit A (copies of air emissions standards from California,
Michigan, New Hampshire, Canada (Saskatchewan, Ontario, and British
Columbia), Belgium, New Zealand, and Holland).) DuPont's own Year
2000 air modeling data confirms levels of C-8 in local community
air in Ohio as high as 0.8 mgh3 and over 2 mgh3 at DuPont's fence
line. (See Exhibit B.) Residents in some of these communities
also are receiving additional doses of C-8 in their drinking water,
which has been contaminated by C-8 releases from DuPont's Washington
Works facility, and may be exposed to C-8 in soils. (See Exhibit
C.)... WVDEP's lack of action contrasts dramatically with the
new "high priority'' level of concern being expressed by
USEPA with respect to C-8 toxicity, particularly given its recently-confirmed
reproductive and developmental effects. (See Exhibit F) ...
November 27, 2002
Letter from Robert A. Bilott of Taft, Stettinius
& Hollster, 425 Walnut Street, Cincinnati, Ohio 45202; toMary
Dominiak, US EPA, Office of Pollution, Prevention and Toxics Chemical
Control Division, Washington, DC 20004. Re:
Documents For Inclusion In Administrative Record 226: Information
Relating To PFOA
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