By Tom Aswell
A 22-year employee of the E.I. DuPont de Nemours (DuPont) plant in Burnside in Ascension Parish has filed a confidential lawsuit in Middle District Federal Court in Baton Rouge that claims the plant has consistently been experiencing toxic gas leaks on almost a daily basis for more than two years without reporting the leaks as required by a 151-year-old federal law.
Jeffrey M. Simoneaux, an Ascension Parish native who served for 14 years as chairman of the plant’s Safety, Health and Environmental Committee, also claims he was harassed, intimidated and denied promotions after he said he complied with DuPont’s own internal procedures for reporting a leak of sulfur trioxide (SO3) gas, a known carcinogen which is regulated under the Toxic Substance Control Act (TSCA) of 1976 and was reprimanded for doing so.
DuPont, headquartered in Wilmington, Del., was ranked 72nd on the Fortune 500 in 2013 and reported 2012 profits of nearly $2.8 billion, down more than 19 percent from 2011, according to a report by CNN Money.
Despite profits from its worldwide operations which employ 60,000 people, DuPont has for years avoided paying any federal income taxes.
The company has contributed more than $21,000 to various state politicians since 2003, including $4,500 to Gov. Bobby Jindal. Its plants in Burnside and in St. John the Baptist Parish have been granted more than $21 million in various tax credits and exemptions by the state.
Those included, in order, the project, the year, parish, total investment, tax exemption and number of new jobs created:
- Plant expansion, 2010, St. John the Baptist, $93 million, $1.4 million five-year tax credit, 11 new jobs;
- Plant expansion, 2008, St. John the Baptist, $58.8 million, 10-year property tax exemption of $10.9 million, five new jobs;
- Retrofit project, 2010, Ascension, $72.2 million, five-year property tax credit of $541,000, three new jobs;
- Miscellaneous capital addition, 2010, St. John the Baptist, $1.3 million, 10-year property tax exemption of $232,000, no new jobs;
- Plant addition, 2009, St. John the Baptist, $6.7 million, 10-year property tax exemption of $1.2 million, no new jobs;
- Plant addition, 2009, Ascension, $45 million, 10-year property tax exemption of $6.9 million, no new jobs.
The case has been referred to Federal District Judge Shelly Dick and Magistrate Judge Stephen Riedlinger, according to court documents.
Simoneaux terminated his employment with DuPont on Aug. 13, 2012, he said.
The most recent filing is a Feb. 21, 2014 Response to State of Uncontested Facts submitted by Simoneaux who is represented by Baton Rouge attorneys Jane Barney and J. Arthur Smith, III.
In that filing, Simoneaux claims that DuPont failed to inform the Environmental Protection Agency of the numerous SO3 leaks by the plant despite its proximity and potential threat to an elementary school, Sorrento Primary School, a residential subdivision and the Mississippi River.
He filed his suit under the 151-year-old False Claims Act (FCA), passed by Congress in 1863 because of concerns that suppliers of goods to the Union Army during the Civil War were defrauding the Army.
Under FCA, DuPont should be subjected to mandatory fines of $25,000 per violation per day plus “recovery of three times the amount of damages sustained by the U.S., and an award of attorney’s fees.”
Simoneaux claims that plant manager Tom Miller became irate when Simoneaux attempted to slow the plant production rate so as to reduce the leakage on Feb. 1, 2012. Miller, he said, overrode his decision and said he wished to speak to Simoneaux alone.
Simoneaux said he would prefer to have another operator present during his conversation with Miller, but the plant manager would not allow it.
Miller subsequently berated Simoneaux for sending an email to his supervisor, Elizabeth Cromwell, and directed him “not to send any more written communications about leaks or stack capacity.” Simoneaux said that Miller “clearly advised” him that should he send future emails to Miller about any offsite release, he would “get in trouble.”
He said he advised Miller that the leak was going offsite as they were speaking but that Miller three separate times refused to ride with Simoneaux to the rear of the plant so that Miller could see for himself the gas, visible as a light blue mist, “flowing over the fence line.”
He said he asked Miller where he thought the gas was going and Miller “looked out the door and said, ‘Who is the plant manager, me or you? I’m telling you I don’t see any gas going off the site.’”
Simoneaux said to properly repair the leaks, the plant should be completely shut down so repairs could be made. Instead, temporary stop-gap measures were attempted utilizing a rubber suction hose that deteriorated quickly because of the acid contained in the lines.
On April 11, 2012, Simoneaux again observed a cloud of leaking SO3 and entered the information in a log book, again provoking Miller’s anger. “The plant manager said he did not want someone ‘coming in her to do an environmental audit and coming across this stuff written in this log book, reading it and getting the wrong idea.”
Simoneaux also said that Miller, during an employee meeting, verbally discouraged employees from calling authorities about the gas leak. He also said an investigation was conducted by management and their report “states that there was no on-site impact and no off-site impact, giving a score of zero to both issues” despite the fact that one employee was treated for eye and throat irritation after being exposed to one leak.
A contract worker also was burned when acid dropped onto him from the rubber hose, the petition says.
A Material Safety Data Sheet was submitted as an exhibit by Simoneaux’s attorneys and provides information under both potential acute and chronic health effects of exposure to SO3.
Potential Acute Health Effects:
- Very hazardous in case of skin contact, eye contact, ingestion or inhalation. Liquid or spray mist may produce tissue damage, particularly on mucous membranes, of eyes, mouth and respiratory tract. Skin contact may produce burns. Inhalation of the spray mist may produce severe irritation of respiratory tract, characterized by coughing, choking or shortness of breath. Severe over-exposure can result in death. Inflammation of the eye(s) is characterized by redness, watering and itching. Skin inflammation is characterized by itching, scaling, reddening, or occasionally, blistering.
Potential Chronic Health Effects:
- Carcinogenic Effects: Classified 1 (proven for human). The substance may be toxic to mucous membranes, skin, eyes. Repeated or prolonged exposure to the substance can produce target organs damage. Repeated or prolonged contact with spray mist may produce chronic eye irritation and severe skin irritation. Repeated or prolonged exposure to spray mist may produce respiratory tract irritation leading to frequent attacks of bronchial infection. Repeated exposure to a highly toxic material may produce general deterioration of health by an accumulation in one or many human organs.
DuPont, as might be expected, denied Simoneaux’s claims but in its response to Simoneaux’s first set of requests for production of documents, standard procedure in any civil litigation under the rules of discovery, the company made several glaring admissions that tend to substantiate Simoneaux’s claims and deposition testimony of several of Simoneaux’s former co-workers at DuPont’s Burnside plant:
- Asked to produce all TSCA notifications, the company admitted it “has no responsive documents.
- Asked to produce “every unedited ‘First Report’ pertaining to gas leaks prepared since December of 2011,” DuPont “objects to the term “unedited” as vague (and) calls for speculation and assumes facts not in evidence.”
- Asked to produce all documents subsequent to Nov. 1, 2011 exchanged with or concerning any governmental agency, or authority, including school, police, fire, any insurance company or environmental authorities or agencies pertaining to an actual or potential gas leak, DuPont indicated it believed there were no such documents.
- Asked to produce all documents reflecting impacts to employees or others from a gas leak at the Burnside plant, DuPont objected on the grounds that it seeks privileged medical information.
- Asked to produce all documents reflecting complaints of gas leaks from the Burnside plant since Dec. 1, 2011, DuPont objected, claiming that the word “complaint” was not defined and is vague.
- Asked to produce documents pertaining to communications from Dec. 2, 2011 to the present involving DuPont personnel regarding whether or not to report a gas leak to governing authorities, the need for a plant shutdown and/or precautions or responsive measures to be taken in light of gas leaks, DuPont cited attorney-client privilege.
- Asked to produce all emails exchanged between Miller and ‘DuPont corporate’ and/or any of Miller’s DuPont superiors concerning leaks, environmental conditions and/or safety conditions at the Burnside facility from Dec. 1, 2011 to present, DuPont claimed the request was “overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.”
- Asked to produce all documents pertaining to health effects, risks, studies, tests or hazards associated with SO3 and/or SO2 gas, DuPont claimed the request was “overly broad and unduly burdensome.”
- Asked to produce the log book maintained by operators from Dec. 1, 2011 to present and to produce the “Safety Zone-Burnside Transfer Facility Security Plan” reported prepared by Simoneaux on Mar. 18, 2012, the company claimed the request were “overly broad and unduly burdensome.”
- Asked to produce all documents provided to or received from OSHA concerning gas leaks and/or employee exposure or potential exposure from Dec. 1, 2011, to present, DuPont said it “has no such documents responsive to this request.”
- Asked to produce all documents, including emails, concerning the facts set forth in (Simoneaux’s) complaint, DuPont again invoked the “overly broad and unduly burdensome” claim.
Lonnie Blanchard, a contract worker at the DuPont Burnside facility, testified in his deposition that there were up to two dozen SO3 leaks. He described the leaks as “a real problem” and said on several occasions he could see the cloud of gas escaping from the plant from the Sunshine Bridge that connects the east and west banks of Ascension which is split by the Mississippi River.
Another employee, Percy Bell, testified in his deposition that plant management had issued a policy saying employees were prohibited from taking photographs of the mist clouds.
In his deposition, he was asked, “In the last two years, has there ever been a time when you were working (at the plant) and there hasn’t been a leak?”
“No, I haven’t,” he answered.
Simoneaux said DuPont identified gas leaks to which it will respond “only by visible assessment and (it) has no monitors at equipment sites.”
He added that the stop-gap measure used “is appropriate only for temporary use until permanent repairs can be made” because it is not made of material designed for that purpose and is “known to fail without warning.”
Employees and contractors work in proximity to the leaks on a daily basis with no warning given before there is a visible gas leak. Employees, he said, must watch a wind sock at the plant in attempts to stay up wind of any gas leaks in efforts to avoid exposure.