By Vicki Smith
CLARKSBURG — A state environmental official on Wednesday defended his agency’s handling of a massive toxic waste pile from a former zinc-smelting plant as DuPont tried to fend off allegations of bad conduct and avoid paying punitive damages in a class-action liability and medical monitoring lawsuit.
Ken Ellison, director of the West Virginia Department of Environmental Protection’s Division of Land Restoration, said he alone signed off on a cleanup plan that did not encompass homes nearby, and he denied assertions that political pressure from DuPont or anyone else played a role.
”I have had no communications in any way, shape or form, telling me to do anything,” Ellison testified in Harrison County Circuit Court.
”I have never been asked to alter decisions,” he said. ”That whole thing about politics driving the answers we give, it’s exaggerated.”
Ellison’s comments came during the fourth and final phase of a class-action lawsuit filed against Delaware-based DuPont by 10 residents of Spelter in 2004.
DuPont called Ellison to defend itself from claims that thousands of people in and around the small, Harrison County community deserve punitive damages for conduct the plaintiffs describe as wanton, reckless disregard for their health and safety.
The 10 plaintiffs allege state regulators were complicit in allowing the site to be polluted with arsenic, cadmium and lead, then spared DuPont the expense of cleaning up the community when it capped the waste pile.
The residents also argue the chemical giant cleared away the factory buildings through a state-run voluntary remediation program rather than a federal Superfund program because it was cheaper, less stringent and less focused on protecting human health.
”I can’t accept that at all,” Ellison said. ”I think all our programs are designed to be safe and protective, and they’re all based on the same principles.”
On cross-examination, plaintiffs’ attorney Ned McWilliams showed jurors several documents aimed at illustrating close relationships between DuPont and the licensed remediation specialist on the Spelter project, Potesta Engineering.
Among them was an email from DuPont attorney Bernard Reilly, who said executive Ron Potesta had “affirmed his loyalty” to DuPont.
Ellison had testified that a licensed remediation specialist, or LRS, is required to oversee all work done at a voluntary remediation site, to protect public health and to be objective.
However, one Reilly memo read, in part, “We have a great relationship with Potesta. They have a very deep relationship with the WVDEP. They have every reason to be helpful to DuPont. The key will be to maintaining day to day communications, regardless of who ’on paper’ is the LRS.”
Spelter residents won the first phase of their case Oct. 1, when jurors found DuPont liable for and negligent in creating the waste site. They also found DuPont had created a public and private nuisance and that its pollution trespassed onto private property.
In the second phase, the jury required DuPont to provide medical monitoring for 40 years to people who were exposed to arsenic, cadmium and lead. Judge Thomas Bedell will determine how the plan, which could benefit some 7,000 people in and around Spelter, will be administered.
On Monday, jurors decided DuPont should pay about $55.5 million to clean up the properties of nearby homeowners.
