Judge rules against Dow in aquifer contamination

Deidre Cruse

The Dow Chemical Company is at least one of the parties responsible for the vinyl chloride contamination of the Upper Plaquemine Aquifer, an ad hoc district judge has ruled in a case filed by area landowners.

“The Court finds by a preponderance of evidence that the condition of the Upper Plaquemine Aquifer constitutes a threat to public health...and that The Dow Chemical Company is at least one of the parties responsible for the contamination that possess a threat to the public health,” Judge Jerome M. Winsberg wrote in the judgment after hearing 25 days of testimony in 18th Judicial District Court here.

Plaquemine Utilities Director Ronnie Rockforte, one of those who testified, said the city had to delay for two years using its refurbished water treatment plant until sentinel wells were put in to track the movement of the contamination and alert the city to any problems with the city's water supply, about 30 percent of it drawn from the aquifer and the rest from the city's wells at Port Allen.

“There's nothing wrong with our water here in Plaquemine,” Rockforte told the POST/SOUTH Monday. “...We have not heard of anything that should put us on warning.”

The judge agreed with Dow that the most feasible plan for remediating the contamination is “Monitored Natural Attenuation,” or letting the chemical naturally dissipate, but state Sen. Robert Marionneaux, attorney for a group of the plaintiffs, said he wants a more aggressive “pump and treat” clean-up plan that could cost as much as $367 million. The judge has set a status conference for 9:30 a.m. Wednesday to determine how to proceed, Marionneaux said.

Dow said in a media statement it strongly disagreed with the conclusion that the company was responsible for any of the contamination, but was gratified that Winsberg ruled that Monitored Natural Attenuation was the most reasonable plan for remediation.

“We are still making some decisions based on the judge's ruling, and the judge has yet to make some final decisions,” Dow spokeswoman Stacey Chiasson told the POST/SOUTH Monday.

“We have told this community and our employees from the beginning that we would be part of the solution no matter the source of contamination, and we have done that and more with their support,” Louisiana Operations Site Director Sharon Cole said. “Based on the data collected under the cooperative agreement with the [U. S. Environmental Protection Agency and the Louisiana Department of Environmental Quality], the overall trend of vinyl chloride is down and the area of contamination is stable and not expanding.”

The contamination became an issue in March 2001, when the Louisiana Department of Health and Hospitals (DHH) reported elevated levels of contamination in private well water at the Myrtle Grove Trailer Park. The problem had existed for several years before the health department made it public.

Noretta Thomas and other residents of the trailer park filed suit against landowner A. Wilbert and Sons and others. That suit was consolidated with one filed by Marionneaux for Troy Robichaux and other landowners against DHH, DEQ and Dow. Winsberg ruled in the consolidated case late last month.

Marionneaux said the Myrtle Grove part of the case is in the process of being dismissed. Though the contamination was above the federally set limits for safety, the federal government took the position that no one was harmed, he said.

“Those plaintiffs won't know for years if there was harm,” he said. “...No one is going to drink vinyl chloride to see what happens to them.”

Marionneaux said questions of the clean up of the aquifer and punitive damages against Dow would be decided at a second trial late this fall or early next spring.

“It took a long time to pollute the aquifer, so it will take a long time to clean it,” the attorney said. He favors pumping the water out of the ground, allowing the vinyl chloride to “volatize,” or evaporate as gasoline would.

Dow said that since DHH alerted Myrtle Grove to the problem, the company has been part of a cooperative agreement with EPA and DEQ and voluntarily installed 19 test wells, which are sampled quarterly.

“We understand that because of our technical expertise and long history of engagement, our community expects us to be part of the solution,” Cole said. “This is the way we've always tried to operate, working daily to set the standard for sustainability.”

According to DOW, Monitored Natural Attenuation was the remedy selected by EPA and DEQ to address the remaining low levels of vinyl chloride. The process, allowing naturally occurring bacteria to break down the vinyl chloride, was determined to be the most effective and least disruptive solution for the community.

Marionneaux said Dow was responsible for four instances of contamination, including a spill of 761,000 pounds of perchlorethylene in 1993 and using unlined pits on two areas of its property to dump chemicals that contributed to the contamination of the aquifer.