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Suing the Smelter: Oklahoma Town Takes on Freeport

by Eliza StricklandSpecial to CorpWatch
May 15th, 2008

Cartoon by Khalil Bendib

Hazel Handy has lived in the tiny town of Blackwell, Oklahoma, for most of her 84 years. For all those decades, the local zinc smelter was the central fact of her life. Her husband worked in the furnace room for almost 25 years, stoking the fires that heated the ore. She lives in a neighborhood that the locals call “Smelter Heights,” and when the wind blew from the northwest and past the smelter she knew to take the clothes off the line, close the windows, and keep the children inside.

Handy knew the black grit that blew from the smokestacks was dirty, but she never thought that it might be unhealthy. “We just didn’t know about contamination back then,” she says.

Now the feisty, white-haired Handy wants to join a class action lawsuit filed on April 14 in Oklahoma court. It accuses the smelter’s owners of polluting the town with toxic heavy metals, and failing to clean up the mess after the plant closed in 1974, owned at the time by the mining company Amax, Inc. The case could pit all of the town’s 7,800 citizens against current owner, Freeport-McMoRan, one of the largest mining companies in the world.

The lawsuit alleges both that the town’s soil and groundwater are deeply contaminated, and that Blackwell residents’ health may have suffered as a result. “Defendants left behind an environmental nightmare that still haunts Blackwell residents, both past and present,” the lawsuit says. The smelter, “which once defined an entire community, generating both opportunity and pride, now serves only as a reminder of Defendants’ corporate greed, abandonment and deception.”

The Blackwell suit tells a classic tale of public ignorance, unsafe practices carried out for decades, and the damaging effects felt long afterwards. One of the byproducts of the smelting process was sand that was separated from the ore. The plaintiffs’ lawyers say it’s contaminated with high levels of lead, arsenic and cadmium – minerals that were originally mixed in with the ore.

State and federal environmental agencies have confirmed that Blackwell’s soil and groundwater were polluted with these toxins, although they maintain that the town has been properly cleaned up since the plant’s closure.

Toxic Sand Given Away for Free

During the smelter’s 58 productive years, Amax stored the waste sand in heaps around the facility, and gave it away by the truckload to private citizens and to the town for public works projects. The sand ended up in driveways and roadsides all over town. It also lies underneath the high school track and the parking lot of the First Baptist Church.

Fragments of the ceramic containers that held the sand and ore in the furnace also contain dangerous levels of heavy metals, the plaintiffs say. Shards can still be found strewn around town and in a creek bed a few yards from the baseball fields, where large chunks of fire-blasted ceramic protrude from the shallow water and stud the banks.

The plaintiffs allege that smelter industry groups considered dust emissions a “hazard” as early as the 1930s, but that Amax never warned citizens about potential health risks or the contamination of their homes. When the zinc smelter closed in the 1970s, an outdated relic, it was quickly razed to the ground and new light industry facilities were built on the site. But no large-scale remediation efforts were undertaken until federal and state environmental agencies got involved in the 1990s, and in the plaintiffs’ view, the cleanup since then has been deeply inadequate. The lawsuit describes the ongoing cleanup effort as “nothing more than a sham designed to deceive the citizens of Blackwell.”

Passing the Buck, Keeping the Profits

The company that owned Blackwell’s zinc smelter has been bought out by a succession of mining companies during the 34 years since the smelter’s closure, and with each transaction the liability for the smelter’s pollution has been passed along.

Amax, Inc. owned the smelter during its operational years, when it turned out zinc products for the war effort during World War II and profited from the post-war consumer boom in the 1950s. When the facility closed in 1974, Amax gave the smelter property to the city through a public trust called the Blackwell Industrial Authority, which redeveloped the site as an industrial park.

In 1993, Amax merged with another mining company to become Cyprus Amax Minerals Company; that entity became responsible for finalizing the clean-up agreement with the state environmental agency, and beginning the remediation work.

In 1999, Cyprus Amax was in turn bought by Phelps Dodge, a massive mining company with copper mines throughout the American West. Phelps Dodge has a questionable environmental record. According to the Center for Public Integrity, a government watchdog group, the EPA has listed Phelps Dodge as a “potentially responsible party” in 13 separate Superfund sites.

In 2007, Freeport-McMoRan bought Phelps Dodge, creating one of the world’s largest mining companies, with 2007 revenues of $17.8 billion. Freeport has long been targeted by environmentalists and human rights activists for its extensive copper and gold mining operations in Indonesia. In 2005, the New York Times reported that the Indonesian mine had dumped almost a billion tons of mine waste into a once-pristine river, and that the company had given nearly $20 million in direct payments to Indonesian military and police officials.

Angry Blackwell residents say that not one of these wealthy corporations ever took full responsibility for the mess that was left behind in a small Oklahoma town.

Thirty-four years after the smelter closed, Hazel Handy says she still worries every day about its aftermath. She says that dust from the smelter blew in through the attic and the vents, and is now lodged deep inside the walls. The rooms on the second floor of her small clapboard house have been bare and empty since the late 1980s, and Handy confines herself to the first floor. She says she can’t sell the property, because she wouldn’t want to put another family at risk. But she’d be happy to rent a room upstairs to the smelter’s owners. “I’d even put a bed up there for them,” she laughs. “See how they like it.”  

Warning Signs

Blackwell’s lingering environmental problems came to light in the early 1990s, when routine tests of wastewater in the town’s sewer system showed alarmingly high levels of cadmium and zinc. When the Environmental Protection Agency (EPA) investigated, it found that much of the town’s soil was also contaminated with lead, arsenic, and cadmium.

The Centers for Disease Control (CDC) link these toxic elements with serious health conditions, including brain damage, seizures, kidney failure and several types of cancer. Children under the age of six are particularly at risk from lead exposure, as their brains and central nervous systems are still developing.

The EPA decided that the high levels of toxins in the soil and the groundwater warranted a large-scale remediation effort. The federal agency planned to declare the smelter area a Superfund site, which would define it as one of the most polluted areas in the country, but the state environmental agency requested a special “deferral” instead.  

“At the time there was a lot of angst from towns that had [Superfund] sites,” says Scott Thompson, director of land protection for the Oklahoma Department of Environmental Quality. “There was a concern about negative impacts on the city from a public relations standpoint,” he says. In an attempt to avoid the super-sized bad publicity, the Blackwell site was deferred from the Superfund list, and the state environmental agency agreed to oversee a clean-up effort by the smelter owners.

Thompson says his agency consulted with the EPA on the clean-up agreement, and that the remediation standards would have been no more stringent if the federal government had been in charge. But the plaintiff’s lawyers say that the clean-up was not comprehensive. They allege that the smelter’s owners didn’t test soil from enough residential properties, and that its definition of soil contamination excluded too many tested properties from eligibility for soil replacement.

“We believe that the threshold clean-up levels established by the Oklahoma Department of Environmental Quality are insufficient to protect human health,” says Keith Langston, the case’s lead attorney from the Texas firm Nix, Patterson & Roach.  Langston notes that the agreement mandated a soil clean-up if a sample came back with more than 750 parts per million (ppm) of lead in the soil, and compares that to an EPA “screening level” that requires further investigation when a 400 ppm lead level is found in areas where children play.

Thompson of the state environmental agency points out that a screening level is not a strict standard, and says that the EPA sets clean-up levels on a site-specific basis. Throughout the early 1990s, Thompson says his agency tested more than 400 properties within Blackwell, and replaced soil and sod where appropriate. In 2001, the agency declared the soil clean-up complete, and the EPA signed off on the project, saying that the remediation effort met Superfund standards. Since a Superfund cleanup is supposed to be the highest standard for the restoration of toxic land, townspeople say they were reassured by the EPA’s stamp of approval.

The plaintiffs’ lawyers say that the state and federal environmental agencies failed the people of Blackwell by signing off on a shoddy remediation effort. “The company has been doing the bare minimum to give the appearance of a clean-up,” says Eric Wetzel, a spokesperson for Nix, Patterson & Roach. “And the really bad thing is that they gave a lot of people in town a sense of false security,” he says.

Residents Take Legal Action


In 2006 that sense of security was shattered and residents turned to litigation.

The decisive factor was not health worries, but concerns over property values. Phelps Dodge, the mining company that then owned the old smelter company, explained to Blackwell citizens that the aquifer beneath their town was still contaminated with cadmium, a known carcinogen.

While the town’s drinking water comes from a nearby river, not the aquifer, citizens were told that “deed restrictions” might be placed on their properties, alerting future buyers to the contamination in the groundwater beneath the houses. Several alarmed citizens contacted a local lawyer, who in turn contacted Nix, Patterson & Roach, a law firm known for its involvement with tobacco litigation in the 1990s.

In the fall of 2006, attorney Keith Langston came to Blackwell for the first time. “We met with a couple of the citizens there, and they drove us around town, gave us a tour,” Langston says. “At that point, I didn’t really know what I was looking at. One of the big problems with lead and arsenic contamination is that you can’t see it, you can’t smell it, you can’t taste it. It takes some qualified and highly skilled individuals with the right kind of equipment to do the tests. All we saw was a quaint little town.”

The attorneys had their own scientists collect dirt from yards and dust from houses, and when the results came back, “we felt we had identified a public health crisis there in the town,” Langston says. The lawsuit asks for a “proper and permanent” cleanup of all contaminated properties in town, and also requests a trust fund to provide for ongoing medical monitoring for all Blackwell citizens. Finally, the suit asks for compensatory and punitive damages, but leaves the dollar amount to be determined at the trial.

Bob Coffey, one of the named plaintiffs in the suit, had his house tested, and says the results shocked him. The dust in his attic contained 2,150 ppm of lead, he says, and the house dust and soil outside also tested high for both arsenic and lead. Coffey worked for the smelter for 23 years, and says he was grateful to have a steady job for that time. But, Coffey says, “I just want what’s fair. If they contaminated my home, I want them to pay for it.”

In 2007 as Blackwell neighbors discussed the potential lawsuit and rumors swirled about results of the new soil test, Phelps Dodge announced that it would return to Blackwell to conduct a “supplemental soil sampling program,” and opened a community outreach office in a downtown storefront.

“Phelps Dodge recognized that there may have been some community concerns,” says Steve Lewis, a spokesperson for Phelps Dodge, which became a subsidiary of the mining company Freeport-McMoRan last year. “Even though the state-ordered [remediation] program was finished, they wanted to be a good corporate citizen and make sure people feel like the problem is resolved,” Lewis says. He says that the former round of testing in the 1990s relied on homeowners to come forward to request testing, and that as a result some properties may never have been tested for lead and arsenic. The company’s new goal is to test every property in Blackwell, and clean up every yard or house that needs it, Lewis says.

But the plaintiffs say that this new round of remediation proves that the clean-up wasn’t done properly the first time, on public or private property. Kim Jernigan, the granddaughter of Hazel Handy, lives next door to one of the local elementary schools. In November she watched the clean-up crew dig up part of the schoolyard, take away truckloads of soil and fill in the hole with fresh dirt and sod.

“Phelps Dodge should have never just said, ‘OK, your town is clean now,’ and left,” Jernigan says. “Because it wasn’t.”

Generations at Risk

Handy’s wood-paneled living room walls are crowded with portraits of four generations, from her late husband in his crisp World War II uniform to her great-granddaughter, the bouncy, five-year-old Kaylee. Like many others in town, Handy says her family has had more than its fair share of health problems, and blames the zinc smelter. Handy’s husband had lung and colon cancer, and four of the women in the family have had uterine or ovarian cancer.

In addition to the cancer horror stories, the family wonders whether their children were poisoned by lead. Handy’s grandson, Bobby, lived in her house when he was a toddler, and at the age of two “he started having seizures something awful,” Handy says. Although lead exposure can cause both seizures and mental retardation in young children, the doctors didn’t do a lead test, Handy says. Now, at the age of 25, Bobby gets work through a job program for the developmentally disabled, and participates in the Special Olympics.

For Kim Jernigan, the mother of five-year-old Kaylee, the concern about lead isn’t relegated to town history, it’s an urgent worry. “Sometimes I look at Bobby and wonder if that’s the life my daughter has ahead of her,” she says, pressing her lips together.

In 2006, Kaylee was given a routine blood test when she entered the Head Start program. A few days later when Jernigan dropped her daughter off in the morning, an administrator beckoned her inside, holding an envelope. They pulled Jernigan into a quiet room and sat her down, she remembers, and told her that Kaylee’s lead-blood level was very high: 34.7 micrograms of lead per deciliter of blood. “You know, 40s and 50s are seizures, lots of brain damage, and 70 is death,” Jernigan says.  

The Center for Disease Control says that any amount over 10 micrograms per deciliter is a cause of concern, and some doctors argue that the CDC’s lead standards are insufficient. The plaintiffs’ lawyers have collected further data from Head Start blood tests, and say that one in 10 Blackwell children tested above that CDC level. They allege that one in three Blackwell kids tested at over 5 micrograms, which they argue is enough to cause brain damage.

For Jernigan, that moment in the schoolroom brought home the health risks of living in Blackwell. “Even though I lived here my whole life, and I heard the stories and the rumors, I just felt like it didn’t apply to me,” she says. “It’s like being hijacked – you think, ‘It’s never going to happen to me!’ But then when the results were there in black and white, I had to believe it.”

The owners of the smelter dismiss the plaintiffs’ allegations regarding blood lead levels. “I do think that Blackwell is a safe and healthy place,” says Lewis, the spokesperson for Phelps Dodge. “There’s been no scientific evidence that Phelps Dodge is aware of that there have been any health effects from the activities of the old zinc smelter.”

Phelps Dodge is basing its statements on testing by the Oklahoma State Department of Health, Lewis says. “After 14 years of testing, the state health department has concluded that the lead blood levels are consistent with what you’d expect to find in a community like Blackwell, which has a high percentage of older houses,” Lewis says. “Experts say the most common source of lead is the paint from older houses.”    

Lawsuit Divides Community?

The lawsuit doesn’t ask for damages based on personal injury, but the debate over Blackwell citizens’ health risks will nevertheless come up in court. The lawsuit accuses the smelter owners of creating a public nuisance, alleging the lead, arsenic and cadmium pollution poses a serious threat to citizens’ health and safety, and that it also damaged residents’ property. The suit also accuses the mining companies of “unjust enrichment,” alleging that the companies deliberately avoided the expense of properly disposing of the smelter’s toxic byproducts.

Not everyone in town is happy about the lawsuit. Some business owners have accused the Texas law firm of sensationalism, and worry that bad publicity will drive away residents or new businesses. The town is already struggling economically. Blackwell’s tiny downtown is defined by classic brick storefronts that were built more than a century ago, but many of the shops in those historic buildings have closed. A message painted on the window of the Chamber of Commerce’s office reads, “Believe in Blackwell!”  

Nix, Patterson & Roach spokesperson Wetzel says he hopes the town’s civic leaders will take the long view, and will come around to embracing the lawsuit. “If you’re afraid of the stigma it might have on development, is it worse to have that exposure, or it is worse to leave the problem and let it fester?” he asks. “If this problem is not taken care of, permanently, what this town will be left with is a whole lot of uncertainty, and a whole lot of contamination.”

For Jernigan, the lawsuit is an attempt to finally close a long and traumatic chapter in the town’s history. And she says the smelter’s owners are the only ones who can do it. “They’ve got to step up to the plate and say, ‘Yeah, we’re going to help you and take care of all this,’ or else they should be forced to,” she says.

“It’s been going on for over 30 years, since the plant closed,” Jernigan says wearily. “Something’s got to give."