This article originally provided by The State Journal

December 13, 2004

Chemical Companies Targeted in Suits

Marshall County Case Represents Plaintiffs Seeking Medical Monitoring Costs

By JULIET A. TERRY jterry@statejournal.com 

A Wheeling lawyer wants coal companies to know they are not the target in a newly certified class action lawsuit. He's going after chemical companies.

Dean Hartley represents a class of at least 500 people in West Virginia — mostly coal preparation plant workers — who are not ill but fear they may develop a serious disease because of exposure to dangerous chemicals. That fear makes them entitled to medical monitoring, periodic medical testing to monitor the class members for diseases, Hartley said. And he wants chemical companies to pay for it.

The lawsuit is pending in Marshall County Circuit Court.

Defendants include Chemtall Inc. of Georgia, CIBA Specialty Chemicals Corp. and Cytec Industries Inc. of Delaware, G.E. Betz Inc. of Pennsylvania and Hychem Inc. of Florida.

The defense declined to comment. In a previous article published in The State Journal about the lawsuit, Donna Jacob-owski, spokeswoman for CIBA Specialty Chemicals, said the company's products are safe.

"We believe we have a strong position. We believe the products we provided were very safe," she said.

Cleaning Coal Coal preparation plants use a chemical called polyacrylamide, which is part of a class of chemicals called flocculants that help particles settle in liquid. Flocculants are used in a variety of industries, such as in wastewater treatment, paper-making and oil recovery.

Polyacrylamide in the water helps remove unwanted materials when coal is washed at the coal preparation plants.

High-quality polyacrylamide is safe, Hartley said. But he will try to prove the chemical company defendants were selling a lower-grade flocculant that contained residual acrylamide, the basic chemical compound called a monomer that repeats itself during polymerizeration to become polyacrylamide.

The residual acrylamide is what makes the flocculant dangerous, Hartley said, and he believes the chemical manufacturers never told coal preparation operators and workers that they should be taking safety precautions.

"We didn't sue the coal companies, we sued the manufacturers, suppliers and sales representatives," Hartley said.

"We feel, based on talks we've had, that sales reps for various polyacrylamide flocculant manufacturers misled the coal companies into believing their product is safe.

"They were told by the reps, 'You can swim in this stuff and be safe,'" he said.

Jacobowski said in a previous interview that polyacrylamide does contain some residual acrylamide but not enough to harm anyone.

"We test our products and found the amount of residual acrylamide fell well below worker safety levels," Jacobowski said in September. "We are going to cooperate in this process, and we feel optimistic."

Cause for Concern Hartley said he first learned of the dangers at the coal preparation plants when he was trying to determine if a certain type of hydraulic fluid used mostly in longwall mining operations could be causing health problems miners were complaining of to him.

"Someone said we should look at the material used to separate coal. We were told a lot of people were developing Parkinson's-like symptoms," Hartley said.

Hartley began interviewing coal preparation workers who were suffering from diseases such as peripheral neuropathy, a degeneration of peripheral nerves that sometimes is associated with lead poisoning.

After some research, Hartley identified the possibility that residual acrylamide was causing health problems for the workers. But he decided to pursue a medical monitoring claim before a personal injury lawsuit.

"We haven't determined what to do with the folks who are already sick," he said. "The class is for people who aren't sick. We hope that with medical monitoring, we can pick up their problems early so they'll have a better outcome."

Warnings Were Needed The defendants should pay for medical testing for their failure to warn about the dangers of residual acrylamide, Hartley said.

"Would the amount of residual monomer be enough to cause problems? That's the crux of this case," he said.

Different grades for polyacrylamide are manufactured because it is used in everything from contact lenses and Tupperware to water and soil, Hartley said.

And while some European nations, particularly Scandinavian countries, have regulatory control over the chemical, the United States does not require such quality control, he said.

"The cost to eliminate the monomer rises as it's 'cooking,' so to speak. There comes a time when it is not economically feasible to continue to polymerize the product to eliminate the monomer," Hartley said. "We understand that. But if it's not economically feasible to remove enough monomer to make the product safe for these workers, they should have warned them so they know how to protect themselves. I don't think that's unreasonable."

Class Certification Marshall County Circuit Judge John T. Madden certified the class action, and now plaintiffs' and defense counsel are filing briefs for how they believe the case should proceed. The judge can take their suggestions under advisement or devise his own parameters for the case management order.

The class is certified to include all people who worked in coal preparation plants in West Virginia, Illinois, Indiana, Ohio, Pennsylvania, Tennessee and Virginia who have had significant inhalation, ingestion or skin exposure to polyacrylamide flocculants with the residual acrylamide monomer and are at a significantly increased risk for the following:

• nervous system deficits
• cancer
• genetic abnormalities
• reproductive or fertility problems

The class also includes offspring of coal preparation workers.