http://sundaygazettemail.com/section/News/2005070236
July 3, 2005
The
Sunday Gazette-Mail [The Charleston Gazette] (West Virginia)
DuPont lawyer edited DEP's C8 media releases
By Ken Ward Jr.
Staff writer
In early March 2002, state environmental regulators planned to
warn Wood County residents that the toxic chemical C8 was spreading
across the area through air emissions from DuPont Co.’s
Parkersburg plant.
“It is increasingly likely that the chemical is being spread
in several ways — in groundwater, in the soil and now by
air,” said a draft news release written by then-Department
of Environmental Protection spokesman Andy Gallagher.
But the public never got that news. The DEP killed its release
after complaints from a DuPont lawyer, according to records obtained
under the federal Freedom of Information Act.
Last week, Gallagher confirmed in an interview
that Dee Ann Staats, a toxicologist hired as the DEP’s science
adviser, insisted that DuPont review, edit and approve all C8-related
statements issued by the state.
“I thought it was a strange policy,” Gallagher said.
“I fought against that, because I thought we were withholding
information.”
In the case of the March 2002 news release, the DEP was to announce
plans to expand testing of water supplies around the DuPont plant.
DEP officials felt that the testing was needed to map contamination
of drinking water with C8.
At the time, agency officials were telling Gallagher that they
were also becoming worried that C8 was spreading through air emissions.
“Water testing area expanded around Parkersburg DuPont
plant as concern over airborne spread of chemical grows,”
said the headline on Gallagher’s news release.
After DuPont objected, Gallagher first edited all mention of
air emissions from the release. Then, he scrapped it altogether
— because of DuPont’s complaints, according to the
records.
In a sworn statement filed with the U.S.
Environmental Protection Agency, Gallagher explained that DuPont
regularly reviewed and edited DEP news releases concerning C8
issues.
Jessica Greathouse, the DEP’s current
communications chief, said that it was wrong for DuPont to be
allowed to edit a government agency’s press releases. She
said the practice no longer occurs.
“Under my watch, it’s not appropriate,” Greathouse
said. “Press releases written by me or anyone on my staff
are under our editorial control.”
Gallagher, a former Gazette and Associated Press reporter, was
the DEP’s top communications official from 1998 until 2002.
He left the agency after making negative statements about Massey
Energy Co. in the entertainment newspaper Graffiti.
Gallagher discussed details of DuPont’s involvement in
DEP press releases in a sworn statement in the class-action lawsuit
filed by Wood County residents whose drinking water has been contaminated
with C8. Gallagher was questioned by lawyers for the residents
and lawyers for DuPont during a May 2004 deposition in Charleston.
In February, EPA lawyers filed Gallagher’s statement and
related documents with an administrative law judge as part of
a suit that alleges DuPont covered up information about C8’s
dangers.
The Sunday Gazette-Mail obtained the records from the EPA through
a FOIA request.
C8, or ammonium perfluorooctanoate, has
been used by DuPont since 1951 at its Washington Works plant south
of Parkersburg.
Since that time, C8 — and DuPont’s
emissions of it — have essentially been unregulated by state
and federal agencies.
Fueled in large part by internal DuPont documents uncovered by
lawyers for Wood County residents, the EPA began a detailed study
of the chemical. EPA also sued DuPont for hiding information about
C8’s dangers. A federal grand jury also is investigating
potential criminal violations by the company.
Previously, DuPont had been through two regulatory investigations
of C8 without facing major restrictions on its use or emissions
of the chemical.
In December 1996, DuPont agreed to pay
$200,000 in fines and upgrade its Dry Run landfill to resolve
complaints that pollution from the dump was killing area cattle
and deer.
That settlement included no limit on the
amount of C8 that could be discharged from the landfill into nearby
Dry Run Creek.
Currently, the state Environmental Quality
Board is considering a DEP move to renew the landfill’s
permit for another five years — again with no limit on C8
emissions.
In November 2001, Gov. Bob Wise’s administration agreed
to form a team that included DuPont representatives to study C8
and decide how much exposure is safe. Since then, the DEP has
issued a series of reports stating that current
levels of C8 exposure from the Washington Works are not harmful.
In writing those reports, the DEP used
teams of scientists that included DuPont representatives.
Lawyers for Wood County residents asked to have their own experts
serve on the teams, but Staats and then-DEP Secretary Michael
Callaghan refused.
In his sworn statement, Gallagher said that he told Staats it
was a mistake not to have a citizen representative take part in
the study.
“I was always looking to the sensitive nature of how it
might be perceived by the public, how DEP was dealing with the
issue, and I just thought it was a matter of fairness and balance
that if we were going to have a company official on we should
have somebody representing the public,” Gallagher said in
his statement.
Gallagher said that Staats “just
did not want to upset the company.” He said that she was
“particularly sensitive” to any mention in news releases
that C8 was being spread by air emissions.
“She excised that from every news
release that I ever recall dealing with,” Gallagher said.
“She said that she didn’t want that in there.”
Gallagher said he tried to issue the March 2002 news release
without getting prior approval from Staats and DuPont. Details
of what happened next are included in e-mail messages attached
as exhibits to Gallagher’s sworn statement.
Someone from the DEP — it is not clear who — e-mailed
a draft of it to a DuPont hydrologist, who forwarded it to various
company officials, including Ann Bradley,
a Spilman Thomas & Battle lawyer who represents DuPont.
Company officials then moved to block the release from going out.
“I just spoke with Ann [Bradley], who reached Terry Headley
and Andy Gallagher in the DEP public information officer,”
wrote Dawn Jackson, then a DuPont public relations official, in
an e-mail message to other company representatives.
“The attached news release has been sent to the media,”
Jackson wrote. “Ann explained to Andy that releasing this
kind of statement without input from Dr. Staats is unacceptable,
stated that we had had this problem before with statements containing
errors being released without Dr. Staats’ approval, and
asked that Andy Gallagher arrange a meeting with WVDEP Secretary
Callaghan. Andy said that the Secretary is out of town, but he
will set up something with his office when he returns.”
Gallagher tried to edit the release to address DuPont’s
concerns, but the company was not satisfied.
“Ann Bradley, [DuPont official]
Bernie Reilly and I conferenced briefly just a few minutes ago,”
Jackson wrote in an e-mail. “Ann had a chance to speak with
Dr. Staats, the science adviser for the state consent order work,
and she is furious that the press release
was issued without her review. She agrees with the need
to speak with Secretary Callaghan.”
Jackson continued, “Also, Andy Gallagher
called Ann back shortly before 6 p.m. to tell her that he had
issued a notice to the AP wire service to pull the story that
he had released earlier.”
Jackson wrote that if DuPont received any media inquiries about
the release, she would say, “We understand that the WVDEP
has disavowed that statement, and it is appropriate that you contact
them.” She would then refer callers to Staats for any further
comments.
Last week, Bradley said she did not recall specifics, but that
the company “identified factual errors in press releases.”
In Gallagher’s deposition, DuPont lawyer Stephen Fennell
asked about a May news release.
Bradley had reviewed it before it was issued. She corrected two
misspellings of the full chemical name for C8, and suggested using
the phrase “reduce exposure levels” instead of “remediate”
to describe the requirements of the company’s 2001 consent
order with the DEP.
In an interview, Bradley said that she did not make a habit of
editing the DEP’s news releases.
“There may have been one or two press releases, but I don’t
recall it being a routine matter,” Bradley said.
Before joining state government, DEP Secretary
Stephanie Timmermeyer was a lawyer at Bradley’s firm. Timmermeyer
helped DuPont draft the 2001 consent order with the DEP,
records show.
DEP officials say Timmermeyer does not get involved in C8 issues
for the agency. No formal recusal arrangement has ever been put
in writing.
In his deposition, Gallagher said that Timmermeyer once called
him when she was still with the Spilman law firm and “asked
me to change a news release.”
“I don’t even remember what the details were,”
Gallagher said. “I told her I would not, and we left it
at that.”
Through a spokeswoman, Timmermeyer said that she did not remember
that incident.
“She does not recall having any conversation with Gallagher
about press releases regarding DuPont, C8 or any subject,”
Greathouse said in an e-mail message.
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
