The Charleston Gazette has a long and proud tradition as a crusading newspaper. Our late publisher, W.E. "Ned" Chilton III coined the phrase "sustained outrage" and insisted the Gazette live up to that motto with long-term coverage of important issues facing West Virginia and the nation.
The mission of the "Gazette Watchdog" is simple: To carry on that tradition. We make a commitment to our readers to serve as a public watchdog over government, business, and other powerful entities in West Virginia society, to ensure that the public interest is protected.
Another trial is underway in federal court in Ohio against DuPont for the impacts of its C8 pollution. As the Columbus Dispatch reports:
Kenneth Vigneron Sr. is a regular guy who likes to hunt with his buddies and do the best for his four kids, his attorney said Tuesday in federal court in Columbus.
This week, though, the 56-year-old truck driver from Washington County, Ohio, is the focus of another multimillion-dollar lawsuit against DuPont over the C8 chemical it used to make Teflon, the nonstick coating on pots and pan.
Plaintiffs have said they contracted myriad diseases after DuPont dumped C8-contaminated water into the Ohio River and spewed C8 from its smokestacks, both at DuPont’s Washington Works Plant south of Parkersburg, West Virginia.
Attorneys in more than 3,500 lawsuits pending against DuPont in U.S. District Court in Columbus have been trying to get answers about how the DuPont transactions affect which corporate entity is responsible for damages sought by residents who drank water contaminated by DuPont’s decades-long manufacture of C8 at its Washington Works plant south of Parkersburg …
So far, juries awarded verdicts against DuPont for a total of $7.2 million in two of the C8 cases that have gone to trial. Three other cases have settled for undisclosed amounts. Another case is set for trial in November and the judge has indicated that 40 more cases alleging C8 caused cancer will go to trial in 2017.
Earlier today, a committee of West Virginia’s Public Water Supply Safety Study Commission indicated it was going to review the CSB report more closely because of the concerns that have been raised about it by citizens and scientists (see here, here and here).
Readers may recall that the PWSSSC (phew) was charged by the Legislature with, among other things, reviewing a longstanding CSB recommendation that the Kanawha Valley and West Virginia establish a local chemical accident prevent program. When the Freedom spill happened, state and local officials had never acted on that CSB recommendation, and as part of the post-spill legislation on above-ground chemical storage tanks, lawmakers decided to revisit it by having the commission take a look.
During a meeting this morning in Charleston, the commission’s committee that is looking at the CSB recommendation said it plans later this month to urge the entire commission to adopt a recommendation to the Legislature that the CSB proposal be implemented. This would obviously be a big deal — though given the GOP’s continued control of the Senate and House, it’s possible it will be dead on arrival at the statehouse.
The water safety commission has another meeting set for Nov. 22 where it will consider and vote on the issue.
Meanwhile, commission member Evan Hansen suggested, and the commission agreed, that the committee looking at the CSB recommendation also take a closer look at the concerns that have been raised about the CSB report on Freedom. A lawyer for the commission said that if the panel decides it has problems with the CSB report, it could include those concerns in its annual report to the Legislature, which is due Dec. 15.
There’s a new study out today with some important findings about the extent of contamination around the country related to C8 and similar chemicals. Here’s the conclusion, as summarized in a press release from Harvard University, whose researchers worked on the paper:
The researchers looked at concentrations of six types of PFASs in drinking-water supplies, using data from more than 36,000 water samples collected nationwide by the U.S. Environmental Protection Agency (EPA) from 2013 to 2015. They also looked at industrial sites that manufacture or use PFASs; at military fire-training sites and civilian airports where firefighting foam containing PFASs is used; and at wastewater-treatment plants. Discharges from these plants — which are unable to remove PFASs from wastewater by standard treatment methods — could contaminate groundwater. So could the sludge the plants generate, which is frequently used as fertilizer.
The study found that PFASs were detectable at the minimum reporting levels required by the EPA in 194 out of 4,864 water supplies in 33 states across the United States. Drinking water from 13 states accounted for 75 percent of the detections: California, New Jersey, North Carolina, Alabama, Florida, Pennsylvania, Ohio, New York, Georgia, Minnesota, Arizona, Massachusetts, and Illinois, in order of frequency of detection.
If you’ve been following the issue of questions that surround who exactly continues to have the liability for DuPont Co.’s C8 pollution (see here, here and here), there’s some pretty interesting news that’s come out of a teleconference Wednesday among the lawyers and the judge in federal court in Ohio — where thousands of cases against DuPont are pending.
It seems that U.S. District Judge Edmund A. Sargus Jr. is becoming increasing concerned — and is finally moving toward ordering DuPont to turn over information that lawyers for the plaintiffs in these cases have demanding, and that they hope might shed some light on the situation.
… The longer this takes and the more difficult it becomes to get this information, truthfully, the more I’m determined that there is something that needs to be ferreted out here. I hope it turns out to be the big nothing. But I can tell you from long experience in this job, the more things aren’t disclosed, the more suspicious everybody becomes, and I think that’s the situation we’re in right now.
U.S. District Judge Edmund Sargus Jr. issued this order which sets up the trial schedule in the suit brought on behalf of Kenneth Vigneron Sr. of Washington County, Ohio. The suit alleges that C8 exposure caused Vigneron to contract including being diagnosed with testicular cancer and hypercholesterolemia.
Sargus scheduled the trial to start on Nov. 14, 2016.
Stakeholders want to know how the liabilities will be dealt with once the merger is completed, but beyond that, we need answers about what happens after the company splits into three smaller companies. We have a right to see the separation agreement, and we have a right to see how DuPont, DowDuPont, and any of the final three companies will handle these enormous liabilities. These details are crucial for shareholders, but they are a matter of life and death for thousands of folks in the mid-Ohio Valley.
It is ridiculous that we do not have the basic answers we need as to how our friends and neighbors will be taken care of. It appears that this merger is being carried out with no regard for the human toll it will take on communities in the mid-Ohio Valley and nationwide.
Plaintiffs suing DuPont Co. over alleged exposure to the toxic chemical C8 want to know who is going to pay the $1 billion in damages they are seeking.
Who will be held ultimately responsible is unclear, they say, because DuPont plans to merge with the Dow Chemical Co. later this year and then split into three separate businesses by 2018.
The plaintiffs this week asked a federal judge for documents clarifying DuPont’s liabilities and obligations after the merger and subsequent split.
I’ve posted a copy of that legal filing here, and the News-Journal story continues:
In an April 18 legal filing, Julie Mazza, acting associate general counsel for DuPont, said the company has not made a decision on how the liability will be handled. Mazza also said it is unclear how the company will handle its obligations under Leach v. DuPont.
The Leach case, filed by Mid-Ohio Valley residents, was settled in 2005. Under the settlement, DuPont was mandated to pay for medical monitoring of those potentially exposed to C8 and install water filters to remove the chemical from area water supplies among other commitments. Thousands of Mid-Ohio Valley citizens had opted out of the Leach settlement to pursue their own claims. Those cases will move forward at the glacial pace of 40 cases a year starting in 2017.
“Currently, there has been no determination as to how the obligations of DuPont to the other parties under the Leach settlement agreement would be allocated as part of any post-merger separations,” Mazza wrote referring to Leach v. DuPont, which was filed in 2001.
Plaintiffs’ attorneys representing those who opted out of the Leach settlement responded to Mazza with a motion asking the court to release documents providing details on the C8 liabilities. In a separate court filing, the attorneys called Mazza’s declaration “troubling.”
“It failed to supply any meaningful information regarding where the liabilities relating to the C8 litigation will end up after the proposed DuPont/Dow merger,” wrote Michael London of Douglas & London, a New York firm. “Most importantly, the declaration failed to provide any information regarding whether DuPont will even exist after the merger transaction.”
In this Friday, Feb. 26, 2016 photo, a woman leaves a Tops supermarket with bottled water that is being supplied to residents in Hoosick Falls, N.Y. PFOA, long used in the manufacuring of Teflon pans, Gore-Tex jackets, ski wax, and many other products has turned up in the water in factory towns around the country like Hoosick Falls, impacting drinking water. (AP Photo/Mike Groll)
Over last weekend, as reported here by The New York Times, Gov. Andrew Cuoma made the announcement that a fairly quick move to install new filters on the local water system has had the desired results:
More than six weeks after declaring an environmental emergency in this upstate village, Gov. Andrew M. Cuomo made his first visit here on Sunday, announcing that a new filter system had successfully cleared a toxic chemical known as PFOA from the municipal water supply.
While the Obama administration continues work on a long-awaited national standard for C8, the U.S. Environmental Protection Agency has tightened a pollution advisory for a town in New York — but not for West Virginia communities where drinking water has long been contaminated with the same toxic chemical.
Last week, a lawyer who has for 15 years been urging EPA to take stronger actions about C8 pollution from DuPont Co. and other firms wrote to the agency to question why officials have not updated a drinking water advisory level for Wood County communities to match one issued in late January in Hoosick Falls, New York.
There’s a hefty new ruling out of federal court in Ohio, in which U.S. District Judge Edmund A. Sargus Jr. turns down a request from DuPont Co. for a new trial or a ruling in its favor as a matter of law in the big C8 case trial that ended with a $1.6 million verdict against the company.
Of course, there are more than 3,500 individual C8 cases to go — and Judge Sargus last month issued this order that outlines a plan for trying first the 260 cancer cases on a schedule of 40 per month starting in April 2017.
It may have been luck too — good or bad, depending on what side of the case you’re on — that led the attorney Robert Bilott to sue the DuPont company. In any case, he was an unlikely person to take on one of the world’s largest chemical companies. A partner at a corporate firm in Cincinnati, Bilott had spent his first eight years as an attorney on the other side of the table, defending large companies like DuPont. But in 1999 a cattle farmer named Wilbur Tennant came to see him. Tennant told him that DuPont had bought land from his family that was adjacent to his farm, for what the company had assured him would be a non-hazardous landfill, according to a letter Bilott later filed with the Environmental Protection Agency. Soon, a stream his cows drank from started to run smelly and black, with a layer of foam floating on the surface. Within a few years, hundreds of Tennant’s cattle had died. Bilott had no way of knowing at the time that what seemed like a straightforward case would lead to one of the most significant class-action lawsuits in the history of environmental law.
And here’s the Huffington Post:
The Tennant clan farmed the fertile patch of soil around the home place for more than a century. In the 1950s, Jim’s father ran off, leaving his wife to look after nine cows, two mules, one hog and five children. But the family got by, eating turtle and muskrat and peddling anything it could grow or forage—wild watercress and elderberries in the spring; ginseng and lima beans in the summer; hay and apples in the fall. Their West Virginia farm eventually grew into a 700-acre operation, with more than 200 head of cattle and enough corn to pack a 35-foot silo. Jim and his wife Della bought a house on an adjoining plot of land and swapped the outhouse for an indoor toilet.
Then, in the early 1980s, DuPont, which ran a sprawling chemical plant called Washington Works in nearby Parkersburg, approached the family about buying some acreage for a landfill. The Tennants were wary of having a waste dump so close to the farm. But DuPont assured them it would only dispose of non-toxic material like ash and scrap metal, and so they agreed to sell.
Shortly after the deal closed, Jim and Della, whose home abutted the new landfill, say their two young daughters started wheezing and hacking. Worried about the girls’ health, they moved to a house in town. But most of their relatives stayed, and Jim and Della continued hunting game and eating beef grazed on the farm.
Della took her daughters’ Girl Scout troop there to catch tadpoles in the creek and make plaster molds of deer tracks. Then, at some point in the mid-1990s, the water in the creek turned black and foamy, and the family began finding dead deer tangled in the brambles. The cattle started going blind, sprouting tumors, vomiting blood.
“One time this cow was coming down the road and it was just bellowing, the awfulest bellow you ever heard,” Della told me. “And every time it would bellow, blood would gush from its mouth and its nose. It just bellowed and bellowed and blood just kept flying, and then it would fall down, and it would try to get up … We didn’t have anything to shoot it with, so we just had to watch it until finally the cow bled to death.”
DuPont lawyers understandably would prefer that a jury in the C8 cases not hear anything about the cattle. They filed a motion to have such evidence excluded, arguing, among other things, that “any statement or suggestion that C8 has caused or causes cattle disease or cattle death is unsupported and would be misleading to the jury and unfairly prejudicial to DuPont.” The plaintiffs responded that they planned to offer the cattle evidence only in response to DuPont’s claims that it has at all times acted “proactively” with regard to C8 and public safety.
There’s a new report out this morning from the Environmental Working Group about the dangers of the DuPont Co. toxic chemical C8. Here’s the first bit of the group’s press release:
Newly published research shows that even very small doses of the Teflon chemical PFOA in drinking water pose a more serious threat to public health than previously thought. EWG’s report on the research, released today, shows that federal guidance on safe levels for PFOA is hundreds, even thousands of times too weak.
You can read the full report here. The report cites, among other things, this paper published this month by Harvard University’s Philippe Grandjean and University of Massachusetts at Lowell’s Richard Clapp, which concludes:
Perfluorinated alkyl substances have been in use for over sixty years. These highly stable substances were at first thought to be virtually inert and of low toxicity. Toxicity information slowly emerged on perfluorooctanoic acid and perfluorooctane sulfonate. More than thirty years ago, early studies reported immunotoxicity and carcinogenicity effects. The substances were discovered in blood samples from exposed workers, then in the general population and in community water supplies near U.S. manufacturing plants. Only recently has research publication on perfluorooctanoic acid and perfluorooctane sulfonate intensified. While the toxicology databaseis still far from complete, carcinogenicity and immunotoxicity now appear to be relevant risks at prevalent exposure levels. Existing drinking water limits are based on less complete evidence that was available before 2008 and may be more than 100-fold too high. As risk evaluations assume that untested effects do not require regulatory attention, the greatly underestimated health risks from perfluorooctanoic acid and perfluorooctane sulfonate illustrate the public health implications of assuming the safety of incompletely tested industrial chemicals.
Meanwhile, in federal court over in Ohio, there was another in a series of important rulings (see here and here) in advance of the mid-September and late-November start of trial in the first two of the thousands of personal injury cases pending against DuPont. This particular ruling, issued on Wednesday by Chief U.S. District Judge Edmund A. Sargus Jr., denied DuPont’s motion for summary judgment on the issue of punitive damages in the cases brought by Carla Marie Bartlett and John M. Wolf.