January 15, 2003

Two more neighbors have recently filed a lawsuit against Vernay Laboratories, claiming that they have suffered financial loss and emotional distress because of hazardous waste improperly disposed of at Vernay’s Dayton Street facility.

On Nov. 13, Vernay neighbors Charles Buster and Carole Cobbs filed the suit in the Greene County Court of Common Pleas.

Buster and Cobbs are seeking “damage for the loss of property value because of the contamination,” their attorney, Mark L. Newman of Cincinnati, said in a telephone interview Tuesday.

According to the suit, the neighbors are seeking damages “in excess of $25,000, including compensation and punitive damages.” The figure is a standard one used in such suits, and the couple is not seeking an exact amount at this time, Newman said.

The suit was filed on Nov. 13 to beat the statute of limitations that would have precluded the filing of lawsuits after the date, which came four years after Vernay notified its neighbors of the contamination.

Buster and Cobbs are not able to discuss the suit, Newman said. He said that he is also not able to give more information at this time.

Vernay has until Jan. 19 to respond to the suit, Newman said, after which the discovery stage of the pretrial process will begin with an exchange of documents and dispositions. Newman estimated that it will be “at least a year” before the lawsuit comes to trial.

On Tuesday, Doug Fisher, the environmental affairs and safety manager at Vernay, said that he was not able to comment on the lawsuit. “It’s not appropriate to comment on pending legislation,” he said.

Vernay’s president and CEO, Tom Allen, was on vacation this week and unavailable for comment.

Fisher did emphasize that Vernay is continuing the cleanup effort that began with a September 2002 consent order between the company and the U.S. Environmental Protection Agency. “We’re following the order and continuing to investigate,” he said.

According to the lawsuit, Vernay has emitted and released solid and hazardous waste, pollutants, odors, fumes, contaminants and other substances into the soil, water and the air at and about its Dayton Street facility. These releases “have interfered with and will continue to interfere with the lives and properties” of Buster and Cobb and “constitute a nuisance and trespass,” the suit states.

Furthermore, the suit alleges that Vernay’s improper solid and hazardous waste disposal practices, which include “the improper disposal of Vernay wastes onto the ground and down the drains of the facility,” have caused the contamination of the Vernay facility and the surrounding community, including the neighbors’ properties. “This area of contamination continues to threaten the Plaintiffs’ properties,” the suit states.

The suit lists 15 chemical wastes that “have been released into the air, soil, sediments, groundwater, and/or surface water at and about the Vernay facility, including at and about” the neighbors’ properties.

The suit is at least the third environmental lawsuit Vernay’s neighbors have filed against the company.

In 2002, Vernay and eight of its neighbors settled a federal suit. Under the terms of the settlement, the neighbors received an undisclosed amount of money and were granted oversight of Vernay’s cleanup, leading to the consent order with the U.S. EPA. Vernay was also fined $25,000 for violated the Federal Water Pollution Control Act.

A federal suit filed in 2002 by Suzanne Patterson is still pending.

Last summer, Vernay closed the larger of its two Dayton Street plants, moving the facility’s activities to other plants in the South. In November, Vernay officials said that the company had changed its schedule to close its other Yellow Springs plant. Layoffs are scheduled to begin in November 2004 and the plant will close the following February, the company estimated.

Contamination problems at Vernay became apparent in 1989, when the company found toxic chemicals on its property during an internal investigation, Fisher has said. The company then worked with the Ohio EPA to clean up the contaminants and when more contaminants were found several years later, the company took steps to enroll in the EPA’s Voluntary Action Program, he said.

However, the eight neighbors who filed the original lawsuits maintained that the company was not taking adequate measures to clean up the contamination.

Fisher said that last month Vernay submitted to the U.S. EPA a groundwater technical memorandum, which includes the results of quarterly groundwater monitoring and the evaluation of the efficacy of ongoing groundwater interim measures.

To evaluate the extent of the contamination, the company has installed about 40 wells, 20 on its Dayton Street campus and 20 off the site, according to Fisher. He said that the company has plans to install more wells.

A copy of the groundwater technical memorandum and other information on Vernay’s investigation is available at the Yellow Springs Library and online at www.epa.gov/region5/sites/vernay/index.htm.