Charleston WV Gazette
July 03, 2005

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.