Blackwell residents file lawsuit against mining company

Journal Record, The (Oklahoma City), Apr 15, 2008 by Marie Price

A class-action lawsuit filed Monday alleges that an old zinc smelter exposed Blackwell residents to lead, arsenic and cadmium contamination.

The Blackwell Zinc Smelter, which opened in 1916, has been closed since 1974.

Attorneys for the plaintiffs say that Freeport-McMoRan Copper and Gold, a mining company, its Phelps Dodge Corp. subsidiary, several previous owners of the smelter, and others failed to properly address the toxic pollution problem.

They say recent tests show that 76 percent of Blackwell homes contain lead dust above EPA safety levels, with 90 percent of homes contaminated with arsenic above EPA standards.

Lawyers for the plaintiffs also said that Oklahoma Department of Health tests show that 30 percent of Blackwell children have enough lead in their blood to cause brain damage.

In the complaint, the attorneys also say the contamination has harmed nearby bodies of water and groundwater and affected property values.

Attorney Nelson Roach said the contamination represents a public health crisis.

"Past and current attempts to remediate this town haven't cleaned up the problem," Roach said. "They've covered up the problem. The children of this community are going to continue to be at risk until these companies are forced to remove this contamination properly."

The lawsuit was filed naming four Blackwell residents as plaintiffs, but attorneys say the litigation could affect about 7,000 residents.

The defendants concealed the dangers to health and other problems associated with such contamination, the plaintiffs contend.

"Plaintiffs will not sit idly by as these multinational mega- corporations leave their town for dead," the lawsuit complaint reads.

The complaint alleges counts of nuisance, trespass, strict liability for ultra-hazardous activity and unjust enrichment, and seeks compensatory and punitive damages as well as abatement and remediation of all contaminated properties.

In the early 1990s, the attorneys said, the EPA suggested that Blackwell would be placed on the National Priorities List as a Superfund site if it was not remediated. Instead, they said, oversight of Blackwell was placed under the Oklahoma Department of Environmental Quality.

They said that DEQ has set minimum cleanup levels for the defendants that are insufficient to protect human health.

However, DEQ spokeswoman Skylar McElhaney said the cleanup levels for Blackwell are well within the range that EPA has used at sites around the county.

"While EPA deferred this particular site to DEQ, EPA remains involved in the process through oversight of everything DEQ does relative to this site," she said.

McElhaney said that at the time, DEQ, EPA and Cypress Amax, responsible party in the early 1990s, investigated the extent of soil contamination in Blackwell, and developed a cleanup plan.

In coordination with a steering committee, she said, DEQ held a number of public meetings to inform and involve residents throughout the process.

Phelps Dodge spokesman Steve Lewis said the company has been working with the Blackwell community and civic leaders for almost 10 years to find any soil that has a problem, and clean it up for free.

"Phelps Dodge didn't create the soil issue," Lewis said, adding that his company had never actually operated the smelter. "They are fixing the problem anyway, under standards set by the Oklahoma Department of Environmental Quality."

Lewis said that Phelps Dodge is part of the local community and will remain so, "even after they meet their goal of testing 100 percent of the properties and fixing any that need it."

Lewis said the Health Department has been testing Blackwell children for 14 years, and has found that blood lead levels are consistent with the national average.

"There's no scientific evidence that we are aware of that anyone has been harmed by blood lead levels in Blackwell," he said.

Cheryl Barr, coordinator of the Oklahoma Childhood Lead Poisoning Program within the Health Department, said testing shows that 3.8 percent of children in Blackwell have elevated blood lead levels, which means a level above 10 micrograms per deciliter of blood. She said the national average is 1.6 percent. Barr said 10 micrograms is the concern level as determined by the Centers for Disease Control.