Depositions and court documents in a massive lawsuit against Conoco Inc. indicate that pollution problems from the old Agrico Chemical Co. Superfund site could be much more severe than originally believed.
Evidence gathered in the suit against Conoco, the site’s owner, shows there are areas outside Agrico’s 35-acre boundaries that might not have been properly excavated and treated.
What’s more, toxic chemicals in a massive underground plume from the hazardous waste site that has contaminated Bayou Texar might not be dissipating in the ground as company officials and federal regulators insisted will happen.
These are some of the highlights found in thousands of pages of documents involving the $500 million lawsuit filed last year by Pensacola lawyer Mike Papantonio and a team of high- profile attorneys. The lawsuit alleges, among other things, that the plume severely damaged the bayou and contaminated dozens of private residential irrigation wells.
The lawsuit and resulting publicity have sparked widespread community concerns that pollution from the long-abandoned phosphate fertilizer plant might have exposed residents to dangerous toxins, as well as harmed property values around Bayou Texar in the heart of Pensacola.
Conoco has denied any wrongdoing. The Houston-based energy giant, which last month completed a $15.1 billion merger with Phillips Petroleum Co., maintains the pollution has been properly contained and poses no health risk.
“The company has not changed its view or its position on anything,” said Jesse Rigby, a Pensacola lawyer representing Conoco.
But sworn testimony and court documents reveal:
Consultants, in a confidential report to company officials, estimated that the plume could contaminate two Escambia County Utilities Authority wells with fluoride. However, those wells were closed shortly after the June 1992 report was written.
The report also estimated that more than 1 million pounds of fluoride from the site will eventually flow into Bayou Texar.
Soils northeast of the plant along Interstate 110, and perhaps under the interstate, are contaminated with high concentrations of fluoride from the site. A company consultant testified last month that these soils were never excavated, and that the company never took steps to determine how far the contamination extends along the interstate.
A March 2001 analysis by Conoco consultants concluded fluoride in the underground plume may not be naturally dissipating in the soils as company officials and federal regulators have insisted will happen.
A December 1993 internal memo in which company consultants discuss withholding detailed information about groundwater and soil sampling related to cleanup activities. Instead, property owners who requested sample results were given “non- lab analytical information” that one consultant admitted did not provide useful information about the contamination.
The testimony and documents raise new questions about whether contamination in the groundwater and at the plant site has been properly cleaned. They also bring into question whether Conoco, which has spent more than $300,000 on a local public relations campaign, has been honest with the community about the issue.
Both Rigby and Papantonio declined to discuss details about the documents or the case, which is not expected to go to trial before next year.
But Rigby cautioned against drawing conclusions based solely on court records.
“It’s hard sometimes to just take anybody’s deposition in a vacuum and know how it relates to the whole case,” he said.
The old Agrico plant, located northwest of Brown Barge Middle School near I-110, has been declared a public health hazard by federal regulators, who cited high concentrations of arsenic, fluoride and lead on the site.
Under a plan approved by the U.S. Environmental Protection Agency, Conoco has spent more than $14 million digging up all contaminated soils and placing them in a landfill at the plant site. The landfill was capped with an impermeable clay layer designed to prevent toxins in the soils from leaching into the groundwater and feeding the underground plume.
The EPA approved a separate cleanup plan for the plume. It calls for allowing contaminants in the groundwater to naturally filter out over the course of 70 years.
The EPA has been sharply criticized for not requiring Conoco to pump the pollutants out of the groundwater. Papantonio’s lawsuit asserts that Conoco “saved millions of dollars by leaving the contamination in the groundwater.”
Federal regulators stand by the cleanup plan and say it’s working.
“From our perspective, we believe that it’s protective of human health and the environment,” said Ken Lucas, the EPA’s project manager for the site.
The court records raise other questions.
Among them is the possibility that toxins in the underground plume are not dissipating and are simply running into the bayou.
Bill Deutsch, a Harborside, Maine, consultant found last year that the plume’s largest component, fluoride, was not filtering out of the groundwater on its way to the bayou. This process is called natural attenuation.
“The bottom line is that the available data do not show that natural attenuation is occurring for fluoride at this site,” Deutsch wrote in a e-mail to consultants and Conoco officials.
He added, “High levels of fluoride extend all the way to the bayou.”
But another company consultant, Steven Larson, disputed those conclusions in a June deposition.
Larson, a Conoco expert witness in the lawsuit, testied that fluoride levels in the groundwater have started to decline near the Agrico plant. He testified that this indicates to him that natural attenuation is working.
“My conclusion is that attenuation is occurring and will continue to occur over time,” he testified.
Still, Conoco apparently has known for at least a decade that high volumes of fluoride from the site could enter the bayou.
In the June 1992 report, company consultant Michael McDonald estimated 1.3 million pounds of fluoride would pour into Bayou Texar over 75 years.
McDonald’s report, marked “Confidential!” also notes that about 17,600 pounds of fluoride would flow into the ECUA’s No. 9 and East wells south of the Agrico plant, though he speculated at least some of the fluoride could come from sources other than Agrico. The two wells were closed in the late 1990s.
This appears to contradict what Conoco and its representatives have told the public.
“We know from our data that only fluoride from Agrico has been detected near Bayou Texar and it is very diluted,” wrote Dennis R. Parker, Conoco’s vice president of safety, health and environmental affairs in a January 2001 letter published in the News Journal. “It has no impact on the health of the bayou.”
Yet Parker, in a deposition last month, admitted he had never seen the 1992 report.
This touched off a heated exchange between Papantonio and Parker.
“Isn’t there an ethical and a moral obligation for you to tell the public the truth about what you know?” Papantonio asked.
“I feel that we have told the people the truth,” Parker answered.
Contaminated soil concern
Court records also raise the possibility that Conoco and its consultants did not excavate all the contaminated soils and place them in the capped landfill at the plant site as required in the federally approved cleanup plan.
Mark McClure, a former engineer at DuPont Environmental Remediation Services Inc., designed the site cleanup plan. Part of his job was to ensure that all the contaminated soils were located.
He testified in a deposition in July that shortly after cleanup workers arrived at the site in the early 1990s they discovered much more contaminated soils than they were led to believe would be there.
“There was concern about why we didn’t know about it,” he testified.
McClure also testified that he found a 50-foot pit at a construction site north of the plant containing a white, powdery substance he referred to as “fluoride- related debris material.”
The pit was filled with construction debris, and the contaminated soils were not excavated and placed in the capped landfill, he testified.
In addition, contaminated soils from the Agrico site along I-110, and potentially under the interstate, were not removed, he testified.
McClure said DuPont workers took samples along the west shoulder of I-110, northeast of the plant site, and that in some places they found levels of fluoride more than four times above the federally mandated cleanup levels.
“Well, where did the high levels of fluoride stop? Did they go under 110?” asked Steve Medina, a lawyer with the Levin-Papantonio law firm.
“That’s a good question,” McClure replied.
Lucas, the EPA project manager, said he was surprised to hear of McClure’s testimony.
“If he’s speculating that there’s contamination under the highway, that issue has never been raised,” he said. “We’ve never considered that there’s contamination under I-110.”
Lucas declined to say whether more soil excavation is needed.
McClure’s testimony also raised questions about whether Conoco and its consultants have tried to withhold information from the public.
He testified that he participated in a meeting with other company consultants in which they discussed not providing “sample results” to property owners who had concerns about the contamination. A December 1993 memo shows consultants discussed giving residents who requested sample results “non- lab analytical information,” such as “geotechnical data.”
“Would a landowner who is wanting information about contamination be able to find that out from geotechnical data?” Medina asked.
McClure’s answer: “No.”