State
Plaintiffs Decide To Settle In EnPro Lawsuits
North Mississippi Herald
WATER VALLEY – A confidential settlement is in the works for a federal environmental lawsuit filed
by Yalobusha County and Yalobusha General Hospital in the decades old contamination at the former Colt Industries/Holley Carburetor site in Water Valley. The lawsuit was filed last January by the Yalobusha
County Board of Supervisors on behalf of the county and the Board of Trustees of Yalobusha General Hospital on behalf of the hospital alleging that Holley Automotive Division of Colt Industries, Inc., polluted
the environment with trichloroethylene (TCE) from 1973 to 1987 and failed to remediate the pollution.
Defendants in the lawsuit include EnpPro Industries, Inc., EnPro Holdings, Inc. and Goodrich Corporation.
BorgWarner Emissions Systems acquired the property in 1996 after the contamination occurred and has no environmental liability nor was a defendant in the suit. Court documents show that a telephonic conference with attorneys for the plaintiffs and defendants was held on Dec. 23 with U.S. Magistrate Judge James Virden. “The parties have announced on the record a settlement of this matter subject only to the approval of the defendants boards which is expected to occur by year’s end,” the filing
states. Meeting in a special meeting three days later, Yalobusha County supervisors passed an order ratifying the authorization of settlement of civil litigation pending between the county and hospital and EnPro Industries. Supervisors also authorized the execution of the confidential general and absolute release and notices of settlement release. The discussion and vote were held in executive session as
the topic was litigation, one of a dozen reasons listed in state statute that allows a board to close a meeting to the public.
A settlement is also underway in a second lawsuit filed last February with the same allegations from 33
plaintiffs including homeowners and businesses in the affected area which includes approximately 340
acres located north and northwest of the plant. Court records show a telephonic hearing was
held on October 11 with attorneys for the plaintiffs and defendants regarding a settlement agreement. On
Dec. 12, attorneys for both parties filed a joint stipulation of dismissal for the suit.
Plaintiffs in the second lawsuit listed on the federal court docket are L.L.D., LLC; B.J. Crawford, LLC;
Fountain Square Professional Suites, LLC; 2 Hill, LLC; Emily Childs; Billy Childs; Bobby Clark; Jill
Clark; Jennie Clement; Pamela Coe; James M. Colson, III; Erik Fearing; Kimberly Fearing; Nathaniel
Ferguson; Lauren Ferguson; Michael Fondon; Annie Fondon; Kenneth French; Margie French;
Tyler Hill; Jennifer Hill; Rebecca R. Jones; Anita S. McGehee; James Elephant; Jason Paysinger; Marjorie Reid; Clara Spence; Willis Van Winkle; Robert Walker; Beverly Jean Walker;
William Williamson; Lorri Williamson; John Wood; and Virginia Wood. The plaintiffs in both
lawsuits are represented by multiple law firms including Ridgeland-based Liston & Deas, PLLC; Texas
based Ted B. Lyon and Associates; and local firm CrowMartin, PLLC. Butler Snow represents the defendants.
The Lawsuits
Allegations in the lawsuits report that from 1973 to 1987, the Holley Automotive Division of Colt
Industries, Inc. polluted the environment with TCE, a known hazardous substance and carcinogen.
Colt’s repeated release and discharge of TCE into the environment at the plant contaminated the soil and
groundwater, and the contamination spread. A groundwater plume, contaminated
with TCE, emanates from the premises of the former Holley plant and underlies a surface area of approximately 340 acres north and northwest of the plant. The plume impacts 28 residences and
commercial or governmental buildings, including the hospital, nursing home, daycare center, medical offices and other businesses.
“The releases and discharges of TCE at the Holley plant by Colt employees were grossly negligent,
reckless, and often intentional,” the lawsuit states. “The releases occurred despite Colt’s knowledge that
the chemical it was dumping was a hazardous substance which was dangerous to both human health
and the environment.” The lawsuit also traces a three-decade timeline that included warnings that the
company was notified that the pollution presented a “reasonable likelihood of off-site migration to contaminated groundwater.”
But Colt and its corporate successors – EnPro Industries, Inc., EnPro Holdings, Inc., and Goodrich
Corporation – consistently breached their duties to remediate the contamination, according to the lawsuit.
Other Activity
The lawsuits followed renewed scrutiny of the site by officials with the Mississippi Department
of Environmental Quality (MDEQ) in 2016 after the Environmental Protection Agency (EPA) released new
guidance regarding vapor intrusion, or the process where vapors from underground solvents travel upward through the soil. That guidance prompted MDEQ to evaluate whether vapor intrusion was occurring in the soil and groundwater near the current BorgWarner facility in a contamination
plume that spread north of the original spill of TCE. The problem, as explained by MDEQ officials
in public meetings in Water Valley in early 2016, was that TCE from the soil could enter a residence or
building through vapor intrusion and prolonged exposure could lead to health problems. In 2016, MDEQ officials reported that an administrative order directed En- Pro to formulate and implement a Vapor Intrusion Assessment Work Plan and a similar Groundwater Corrective Action Plan and include
a timeline for the two plans and subsequent correction action. The MDEQ order also included a 10-
year remediation plan. A third lawsuit, filed by former Attorney General Jim Hood against the same
defendants in 2017, continues to work through the court system and sources report that the litigation
includes clean-up efforts to remediate the contamination.
Legal Wrangling – The Pawn In The Lawsuits
North Mississippi Herald
WATER VALLEY – A legal battle about the proper jurisdiction for a pair of environmental lawsuits erupted within weeks of the filings in Yalobusha County Circuit Court in early 2019 and raged for three months.
The lawsuits (see related story, Page A1), one filed by the Yalobusha County Board of Supervisors on behalf of the county and the Yalobusha General Hospital Board of Trusties on behalf of the hospital; and second lawsuit filed by 33 plaintiffs including homeowners and businesses requested a
jury trial in circuit court. The plaintiffs in both lawsuits requested judgment including compensatory damages, special damages, punitive damages, attorneys’ fees and court costs.
On March 1, the defendants filed a Notice of Removal to move the civil action from the Circuit Court of Yalobusha County to the United States District Court, setting up the jurisdictional legal battle on
whether the case would be heard in state court, with local jurors; or in federal court, with a much tighter case management order that would likely bring it to trial faster, and a broader jury pool.
The legal battle hinged on the inclusion of Samuel G. Williamson, a former Holley
employee and local resident, who was named a defendant in the case along with EnPro Industries, Inc., EnPro Holdings, Inc. and Goodrich Corporation. There was a flurry of filings from both sides after attorneys for the defendants argued that Williamson’s inclusion as a defendant was to defeat diversity and keep the lawsuit in state court. The reference to defeating diversity stems from naming Williamson as a defendant because he is a Mississippi resident, defeating the diversity requirement that
would give the federal court jurisdiction because Williamson’s state of residence is the same as the plaintiffs. Simply put, part of the requirements for federal courts to have jurisdiction in a lawsuit include
having complete diversity, meaning that the defendant or defendants do not reside
in the same state as the plaintiff or plaintiffs. With the other defendants – Enpro Industries, Inc., EnPro Holdings, Inc., and Goodrich Corporation – all out-of-state companies, Williamson’s inclusion as a
defendant would allow the lawsuit to be litigated in state court.
The Argument
In the complaint filed by the plaintiffs,the allegations against Williamson stated that he was an employee of Colt, and later of Coltec, and served in various capacities including Environmental/Safety Director
of Coltec. “In such capacity, Mr. Williamson was responsible for managing, supervising,
and overseeing Coltec’s environmental performance and compliance…,” the complaint states.
The plaintiffs argued that Williamson’s responsibility extended to a three-year soil remediation project at the plant in 1993 when Coltec hired TIWC, an environmental company, to heat treat soil excavated
by use of a process known as “thermal desorption,” as part of a soil remediation plan
approved by the Mississippi Department of Environmental Quality (MDEQ). When TIWC deviated from the remediation plan by tossing the soil in the air instead of heat treating it, the plaintiffs argued that
Williamson was liable because he failed to monitor or supervise TIWC. The plaintiff’s argument that Williamson was liable in the lawsuit hinged on two items – that he served as an environmental/
safety director and Coltec and that he answered a phone call in 1995 from a MDEQ official asking how the soil remediation project was progression.
“Not using thermal desorption. Aerating soil by running it over with backhoe and tossing it in air,” Williamson told the MDEQ official according to telephone records. “We did not approve that method. Need to get thermal desorption unit to site and remediate the approved way,” the MDEQ
official responded, followed by a note that a project officer would call the MDEQ official
back. Their filing reports that “project officer” Don Townsend, who supervised the
soil-remediation project, then called the MDEQ official back. “Don assured me that the tossing of soil
would stop immediately. They will bring thermal desorption unit for any soil that is above 1ppm,” the filing states, a reference to the level of concentration of TCE in the soil.
“Townsend was the employee – not Williamson – who sought approval from MDEQ on behalf of Holley Automotive Division for TIWC Environmental Services’ soil remediation work, which began in December
of 1993… the entire foundation for the claim that Williamson was involved in the soil remediation is that he answered a phone call from MDEQ, told MDEQ that Townsend would have to call them back
because Townsend was in charge, and then retrieved Townsend to answer MDEQ’s question,” the defendants’ countered in a response to the plaintiffs’ complaint. The defendant’s filing also states that
when the soil excavation began in 1993, Williamson was the manufacturing engineering
manager, where he had no role or responsibility in the environmental investigation,
remediation or reports. In 1994, Williamson’s title changed to facility engineer manager, but his responsibilities remained the same. Also during the entire soil remediation, Townsend had local responsibility over the project. The same filing from the defendants stated that the claims against Williamson must also be dismissed became “Plaintiffs have specifically represented to Williamson
that they do not intend to pursue claims against him.” The filing cited a conversation two days
after Williamson was served with the lawsuit when he met with two plaintiffs, Mildred
Carpenter and Clara Spence, who described an earlier meeting with plaintiff attorney Shannon Crow, who told a group of the defendants “(1) that it was necessary to have someone local among the defendants
to keep the case out of federal court; (2) that suing Williamson was a mere formality
intended to accomplish that result; and (3) that, although Williamson was sued,
the real lawsuit was against Corporate Defendants and no harm would come to Williamson,”
according to the court filing. In a sworn affidavit filed on April 1, Crow stated that the allegations stated by
Williamson “are false and attributes to me statements which I did not make.”
The plaintiffs also filed a motion on April 1 to strike the references, stating the
alleged communications were privileged.
“On the grounds of the attorney-client privilege and joint-client privileges, references
by the Defendants to any statements of or communications by attorneys for the Plaintiffs made to their clients are privileged and should be stricken from the Defendants’
filings,” the motion stated.
The Outcome
On June 7, U.S. Magistrate Judge Jane M. Virden ruled on the motion regarding the
conversation, denying it to be struck from the record. The judge wrote that the plaintiff’s
counsel takes a two-fold approach. “First, they offer a sworn affidavit asserting
that the attorney, Mr. Crow, did not make any of the alleged statements and the statements themselves are false. At the same time, plaintiffs assert that the statements, if made are privileged. It is elementary
that a party who asserts privilege has the burden of establishing it,” the judge continued. “In short, while the plaintiff was not required to affirmatively swear that the asserted statements did not occur,
it has elected to do so, and having done so, is foreclosed from established the first and most basic element of the privilege – a communication subject thereto.” U.S. District Judge Glen H. Davidson
also denied the request from the plaintiffs to move the case back to Yalobusha County Circuit Court in a ruling on June 24. Judge Davidson also granted a motion to dismiss Williamson as a defendant in
the case as well dismissing claims pending against Williamson without prejudice. “If a court determines that a nondiverse party has been joined to defeat diversity, that party must be dismissed without prejudice,” the judge wrote. “… Plaintiffs are attempting to impose liability upon Williamson
(but not Townsend, who is not a Mississippi resident and is not named a Defendant) for his knowledge of the contractor’s activities at the facility, which is knowledge that the Plaintiffs admit was
possessed by ‘other plant personnel’ as well,” Judge Davidson continued, adding that the defendants met the heavy burden of demonstrating that there is no possibility of recovery against Williamson.
“The Plaintiff’s allegations against Williamson are based entirely on his job title
and the content of a single phone call,” the judge added.
Pressure building on rural north Mississippi dam
AP
Authorities worked to lower the level of a rain-swollen lake in rural north Mississippi on Wednesday, hoping to avoid the failure of a dam amid forecasts of more rain.
Officials monitoring dam at Oktibbeha County Lake for potential failure
WTVA
STARKVILLE, Miss. (WTVA) - The water level at Oktibbeha County Lake rose at least a foot overnight and continues to stress the lake’s dam.
ENGINEERS ON HIGH ALERT AS OKTIBBEHA COUNTY LAKE WATER LEVELS RISE
WCBI
OKTIBBEHA COUNTY, Miss. (WCBI) – Engineers believe it’s no longer a matter of if the Oktibbeha County Lake dam will break, but when.
Oktibbeha Lake dam holds overnight; Authorities warn breach still 'imminent'
Commercial Dispatch
Terra Robinson left Henderson Ward Stewart Elementary School, where she is a teacher, as soon as she heard that the Oktibbeha County Lake Dam could flood her and her family's homes at any moment.
Could the closing of the Steele Bayou gates be an early sign of another flood?
WLBT
JACKSON, Miss. (WLBT) - With the gates at Steele Bayou closing this week to prevent it from backing up and flooding the Delta, concerns are rising that this could be an early sign of another flood.
PRVWSD watching water levels at the Rez
WJTV
RANKIN COUNTY, Miss. (WJTV) – The Pearl River Valley Water Supply District announced their strategy for using the Ross Barnett Reservoir to mitigate flooding in East Jackson and downstream.
Don’t get in flood waters, EOC director warns: ‘There’s glass, there’s rodents’
WLBT
JACKSON, Miss. (WLBT) - Don’t wait, officials said. Make sure you are prepared for the Pearl River to rise if you live in an affected area.
Diesel Spill in Tallahatchie County
Delta News TV
Diesel spilled in a ditch in Tallahatchie County at 1190 Leverette Lane off Highway 35 between the intersection of Highway 8 west of Holcomb and Charleston.
Mississippi Sound Coalition gathers support for laws to save the Sound
WLOX
GULFPORT, Miss. (WLOX) - It’s a complicated problem that will require a complicated solution, and the Mississippi Sound Coalition is doing what it can to help lead the way.
Oil Spill
$2 billion in restoration, levee projects to be put out to bid by Louisiana coastal authority in 2020
NOLA.com
An unprecedented 28 major coastal restoration and flood protection projects, with a total construction value of $1.97 billion, will be put out to public bid this year by the Louisiana Coastal Protection and Restoration Authority, according to the authority's executive director, Bren Haase.
Santa Rosa Sound to benefit from sewer system
Press Gazette
NAVARRE — George Dahlgren remembers catching as many blue crabs as he wanted in the deep, clear water of the Santa Rosa Sound back in the 1950s as a boy.
Regional
Water utility checking for potentially dangerous chemical in Carolinas, other states
The State
A national utility corporation that operates small water systems across South Carolina says it will begin testing drinking water for a group of toxins that have caused increasing concern about their effects on people’s health.
Florida plans to buy and protect Everglades land in Broward targeted for oil drilling
Miami Herald
A swath of land in the Everglades at the center of a fight between a family determined to drill for oil and a constellation of parties urging them not to might finally have a new future.
National
Important EPA decisions coming
Delta Farm Press
The EPA this year will deliver important decisions to U.S. agriculture, including on chlorpyrifos, glyphosate, the neonicotinoids, pyrethroids, atrazine and over-the-top dicamba.
Michigan’s draft PFAS regulations not strong enough, environmentalists say
MLive
ANN ARBOR, MI – Regulating just seven types of PFAS won’t be enough.
That was the message residents and environmental leaders shared with Michigan officials Tuesday night, Jan. 14, calling for broader state regulations for harmful fluorochemicals in drinking water supplies.
Concerns Over PFAS Prompt New Fish Consumption Advisory In Madison
WPR
So-called "forever chemicals" found in fish from two Madison-area bodies of water have prompted a new health advisory from state health and natural resource officials.
Man who is Indiana’s oldest state employee retiring at 102
AP
INDIANAPOLIS (AP) — A 102-year-old man who is Indiana’s oldest state employee is retiring after nearly six decades on the job, saying that “your body tells you when it’s time to go.”
Opinion
Opinion: A Dam Shame
Starkville Daily News
Ankle-deep in mud and staring up from the base of the deteriorating levee at the Oktibbeha County Lake dam on Wednesday morning, I couldn’t help but think of how fragile the whole situation is.
