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updated 01:05, Sun September 30, 2007

Jury Hears Closings in First Phase of DuPont Contamination Trial

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CLARKSBURG, W.Va. (AP) -- A former zinc-smelting plant left "a big cancerous tumor" in a small West Virginia community, and DuPont should be required not only to clean up the mess but also to monitor the health of the people living around it, an attorney for some of those residents said Friday.

Delaware-based DuPont and another company are accused of deliberately creating a 112-acre waste site in Spelter that 10 residents say puts them at risk of cancer and other diseases. Defense attorneys, however, say there is no evidence to support that claim, and DuPont capped the site so it might someday be redeveloped.

"It cannot be denied that DuPont did good things here," insisted defense attorney Jeffrey A. Hall.

The class-action lawsuit, which could benefit thousands of people in and around Spelter, alleges DuPont and New York-based T.L. Diamond & Co. dumped arsenic, cadmium and lead on the site of the former plant.

DuPont put profits ahead of safety and left a toxic waste pile "like a big cancerous tumor living in the middle of decent people," plaintiffs attorney Mike Papantonio, of Pensacola, Fla., said during closing arguments in Harrison County Circuit Court.

"What kind of mess is this? This is the kind of mess that can kill people," he said. "It can change their lives. It can reduce their IQ points."

DuPont lawyer Dave Thomas argued during his closing remarks that the lack of lawsuits in the years leading up to 2004, when this case was filed, should indicate the community's satisfaction with DuPont's conduct. Even now, he said, DuPont does quarterly testing of the West Fork River, where runoff from the waste piles once went.

"DuPont's here to stay," he said. "DuPont's taking care of the river. DuPont's taking care of the site."

Over 90 years, the plant produced more than 4 billion pounds of slab zinc and 400 million pounds of zinc dust -- materials used in rustproofing products, paint pigments and battery anodes.

"They have a right not to have this on their property," Papantonio said of his clients. "God didn't put it there. Mother Nature didn't put it there. DuPont put it there."

The plaintiffs argue the companies knew their waste products were dangerous and acted with negligence.

Thomas, however, contended that DuPont willingly worked with environmental regulators to demolish the factory and cap the tainted property with plastic and fresh soil, rather than going through the much slower federal Superfund cleanup program.

"DuPont came back and did the work no one else was willing to do," Thomas said. "DuPont did the right thing."

Diamond ran the plant from 1975 to 2001, when regulators recommended the site be declared an imminent and substantial threat to public health. DuPont, which has been involved with the property since 1899 when it bought the land for a gunpowder mill, reassumed ownership when the zinc plant closed.

While Diamond is a defendant, the company isn't actively participating in the trial. The judge in the case ruled previously that DuPont is responsible for Diamond's conduct because of the 2001 sales agreement.

The lawsuit demands long-term medical monitoring, property damages and punitive damages.

Papantonio argues a range of health problems could develop from exposure to the toxins, some of which take decades to manifest. They include: neurological impairment; lung, skin, kidney and stomach cancers; damage to the heart, liver, kidneys, bladder and other internal organs; hypertension; diabetes; and decreased fertility.

He accused DuPont of hiding, for 80 years, a 1919 report showing that livestock in the Spelter area suffered a high rate of birth defects, spontaneous abortions, weight loss and death.

Thomas denied that allegation, saying the report was found in a museum. DuPont also argued the report found no evidence of health effects on humans.

Both sides tried to destroy the credibility of each other's expert witnesses, citing conflicts in testimony about testing methods, comparison standards and the dangers to humans.

DuPont argued the plaintiffs are dramatically overstating the potential threat from heavy metals and contended tests have shown no evidence of widespread soil contamination, air pollution or tainted dust in homes.

Papantonio suggested conflicts of interest and accused state environmental regulators of complicity in the pollution at Spelter, noting that in some cases, they signed reports written by DuPont.

"Everybody across the state deserves better," he said.

But DuPont denied that either private engineers or state officials are beholden to the company, and Thomas said the plaintiffs offered no proof of their charges.

"Plaintiffs' theory of the case requires you to believe that state and federal officials were at least incompetent," he said, "or at worst, corrupt."

The trial before Judge Thomas Bedell began Sept. 10.

The 11-member jury, including five alternates, recessed Friday afternoon and will reconvene Monday to decide whether the companies caused the contamination or committed any wrongdoing.

If they determine DuPont and Diamond are responsible, a second phase will determine whether the plaintiffs deserve routine medical screenings and, if so, how much should be spent on that program.

According to an August filing with the U.S. Securities and Exchange Commission, DuPont has already set aside $15 million to deal with the lawsuit.

A third phase of the trial would address property damage claims, while the final phase would address whether punitive damages should be awarded.

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