By Gregory Wilson and Joseph H. Maroon
As Congress and the U.S. Department of Justice consider curbing Clean Water Act lawsuit settlements that incorporate payments from polluters into environmental remediation funds, it is instructive to look at the history of an environmental disaster that happened right here in Virginia. Nowhere will you find a more compelling example for allowing such settlements than that of Allied Chemical and the illegal discharging of the pesticide Kepone into the James River.
This year marks the 40th anniversary of the settlement with Allied Chemical that included a fine and payment of $8 million into a fund that established the Virginia Environmental Endowment. The Kepone case shaped environmental progress in Virginia for decades to come, and underscores the need for vigilance when it comes to protecting public health and the environment from toxic substances.
Allied Chemical created Kepone, the brand name of the pesticide chlordecone, in the 1950s. An endocrine disruptor and carcinogen, Kepone stays intact in the environment for long periods of time, accumulating in the fatty tissue of fish and other creatures that ingest it. Allied Chemical and its affiliate, Life Science Products, produced Kepone in Hopewell from the late 1960s until 1974. Some Kepone went into insect traps in the United States, but most went overseas for use in Eastern Europe and the tropics.
Kepone entered the public eye in July 1975 when Virginia public health officials discovered the pesticide had poisoned Life Science workers exposed to the chemical. Of the 75 workers affected, 29 were hospitalized with varying degrees of body and hand tremors, dizziness, rapid eye movement, headaches, chest pain, and nervous conditions.
Consequently, state health officials shut down the facility and Kepone production in the U.S. ceased. Overseas production and use continued until the United Nations included Kepone on an international list of banned chemicals.
Further investigations by Virginia revealed illegal dumping of waste laden with Kepone into Hopewell’s sewer system and the waters of the James River. The widespread contamination led former Virginia Gov. Mills Godwin to issue a ban on fishing in the James River — a ban that lasted in various forms for 13 years, impacting recreational and commercial users.
In 1977, federal judge Robert R. Merhige Jr. imposed an initial fine of $13.24 million against Allied Chemical for violating the Clean Water Act, but lowered it when Allied entered into a settlement agreement that established the Virginia Environmental Endowment with an $8 million investment.
Judge Merhige sanctioned precisely that which Congress and the Department of Justice may now prohibit.
The Kepone settlement agreement was a landmark decision. Rather than the fine going to the federal treasury and having no certain impact on Virginia, the case gave birth to a grant-making foundation designed to help Virginia’s citizens and environment. Over the past 40 years, the Virginia Environmental Endowment has awarded $29 million in grants to nearly 500 organizations, universities, schools, and communities, leveraging the $8 million it received from the original settlement to achieve more than $80 million for environmental improvement.
Impacts from Kepone pollution remain — a fish consumption advisory is still in effect and recent sampling by scientists at the Virginia Institute of Marine Science revealed continued contamination at trace levels in 65 percent of the fish sampled in the river, four decades after production of the chemical ceased. Yet the James River is much healthier than it was in the mid-1970s. According to the James River Association, the measured health of the James River has increased remarkably, making it arguably the most improved river in the nation.
Kepone’s history serves as a compelling reminder of both the human and environmental consequences of unchecked pollution and the value of the use of settlement funds to catalyze environmental progress.