Document Yr3m7KDN3pe3NJXJrwjRN4x9E

NORTHERN KENTU CKY OFFICE SU IT E 340 DIXIE HIGHWAY O V IN G T C N K E N T U C K Y 4 - : * * - i :D4 6C6-331-2938 5 13-381-2938 FAX 513-381-6613 R o b e r t a . B ilo t t ,513 357-9638 bito@taftfaw com TAFT, STETTINIUS & HOLLISTER LLP 425 WALNUT STREET, SUITE 1800 CINCINNATI, OHIO 45202-3957 513-381-2838 FAX; 513-381-0205 www taftlaw com A R S . - October 25. 2002 TELEC O PY AND REGULAR U.S. MAIL Perry D. McDaniel. Esq. West Virginia Department of Environmental Protection Office of Legal Services 1356 Hansford Street Charleston, WV 25301 C L E V E L A N D O h io O F c >C 35CC 3P "C / ^ R 2CC P 'JB L C S C I A R E l e v e l a n d O h io a-i * 4 -: :c 2 ?ax: * s 2- 2*45`-:.4:3*3.38 *:' DCLUM8US Ch ic Dpr CE : E A ST STATS S " R E * OLUM8US chicJ3:*5-i::* 6*4.22,-2538 =AX 5 ,4.224-2CC' n ?7 rCOC-TZoJDD CTN Re: DuPont/C-8 Issues: Jack IV. Leach, et al. v. E.I. duPont de Nemours and Company and Lubeck Public Service District (Circuit Court of Wood Ctv, WV. Civil Action No. 01-C-608) Dear Pern. -. It has come to our attention that Joe Dawlev. formerly with the law firm of Spilman Thomas & Battle in Charleston. West Virginia, accepted the request of WVDEP's Secretary. Michael Callaghan, to become the new General Counsel for WVDEP. (See Attachment A) As you are aware. Mr. Dawlev was working as one of the attorneys representing E.I. duPont de Nemours and Company ("DuPont") in connection with ongoing C-8 issues and in defense o f the claims asserted against DuPont in the referenced lawsuit. In particular, you may recall that Mr. Dawlev represented DuPont in at least one meeting between WVDEP and Plaintiffs in the referenced lawsuit to discuss issues relating to WVDEP's compliance with the Wood County Circuit Court's Order prohibiting WVDEP from destroying any C-8 documents and requiring WVDEP to try to retrieve electronic documents previously deleted from Dr. Dee Ann Staats' files. Mr. Dawlev also appears to have had some level of involvement while at Spilman in assisting DuPont in the negotiation and drafting of the November 2001 Consent Order entered between the State and DuPont on C-8 matters ( the "Consent Order"). (See Attachment B) We understand that Mr. Dawley was approached by Secretary Callaghan to become General Counsel for WVDEP while Mr. Dawley was working at Spilman. `A M J GB! 000163 Perry D. McDaniel, Esq. October 25. 2002 Page 2 We further understand that another former Spilman lawyer. Stephanie Timmermeyer. also recently left that law firm to accept the position as Director of WVDEP's Division of Air Quality , after Ms. Timmermeyer also had been working directly for DuPont on C-8 issues, and also apparently had worked for DuPont in negotiating and drafting the Consent Order. (See Attachment C) We understand that the Director of WVDEP's Division o f Water resources. Allyn Turner, also is a former Spilman attorney. (See Attachment A) Thus, we understand that WVDEP now has former Spilman lawyers in charge of its Air Division. Water Division, and Legal Divisions. One of those attorneys who helped draft the Consent Order on DuPont's behalf is now the individual ultimately in charge of the WVDEP Division and personnel that must determine whether DuPont's C-8 air emissions are exceeding applicable screening levels under that very same Consent Order. The individual ultimately m charge of the WVDEP personnel that determine DuPont's legal compliance with the C-8 Consent Order also apparently was involved to some degree with negotiating and drafting that same Consent Order on behalf of DuPont and was representing DuPont in litigation with our clients where DuPont has been advocating the position that its C-8 emissions and releases are not actionable at all. Even if the WVDEP personnel who had previously worked for DuPont on C-8 matters were somehow prohibited from working on C-8 matters at WVDEP themselves, their subordinates are fully aware that their bosses ultimately retain the power and discretion to rewarJ and punish their actions as they deem appropriate. Based on the foregoing, we request on behalf o f our clients that WVDEP rum over all issues involving enforcement o f the November 2001 Consent Order between the State and DuPont to an independent organization or agency that is not supervised or staffed by former DuPont attorneys or employees. With respect to independent oversight of WVDEP. we note tha: Secretary Callaghan publicallv announced in July of 2002 that he had requested "that the Prosecuting Attorney's Association conduct an independent investigation into DEP's practices regarding document retention and the C-8 case." As o f today's date, we have heard nothing further with respect to that investigation. We look forward to prompt confirmation from WVDEP as to how these issues are being handled. Thank you. RAB/mdm Attachments 000164 Perry D. McDaniel. Esq. October 25. 2002 Page 3 cc: R. Edison Hill. Esq. (w/ attachments) Larry A. Winter. Esq. (w/ attachments) Heather Heiskell Jones. Esq. (w/ attachments) John R. McGhee. Jr. Esq. (w/ attachments) Richard A. Hay hurst. Esq. (w/ attachments) Darrell V. McGraw. Jr. Esq. (WV Attorney General's Office) (w/ attachments) William Chamock. Esq. (WV Prosecuting Attorney's Association) (w/ attachments Janet Sharke. Esq. (USEPA. Region III) (w/ attachments) Lillian Pinzon. Esq. (USEPA. Region V) (w/ attachments) Greg Smith. Esq. (Ohio EPA. Legal) (w/ attachments) Betty Montgomery. Esq. (Ohio Attorney General's Office) (w/ attachments) 000165 4. 4. C i W 4 J Mattresses, teds... M OCXS CUS3HEM HOMES PERSO CARS lOCa i SHOPP'NG CELEBRATIONS COUPONS Back ta r Today's iVews m * Salkda Board Archives Select Date Industry firm lawyer named general a counsel for DEP P S tare* th e w i m Tuesday August 13, 2002 By Ken Ward Jr, STAFF WRITER Special The Wise administration on Monday named a lawyer from a local Features Today's front page industry firm to be general counsel for the state Department o f Environmental Protection Crosswords Joseph M. Dawley will take over the DEP job in August. He is Roll Call Bulletin Board currently an associate at the firm Spilman, Thomas & Battle. Regde ts - f o n a a Recipes Dawley, 37, is a 1997 graduate o f the Northwestern University School o f Law. He is also a professional engineer, with a chemical engineering degree from Syracuse University. Other Feature Stocks Legal ads HtiresCQPSS LLSTWgild "Joe has law experience in air quality, waste management, and water resources issues," said DEP Secretary Michael Callaghan "H e's well suited for advising DEP on environmental policy." Weather Movie Listings Television WT/a. Logeiy Dawley replaces Bill Adams, another former Spilman lawyer, who resigned last week after nearly 10 years with the agency. Other former Spilman lawyers in top posts at DEP include Allyn About the Turner, director o f the Division o f Water Resources, and Gazette Contacting ua Stephanie Timmermeyer, director o f the Division o f Air Quality. O O O ife 11 AI I Gazette Online - industry mu. .awyer named general counsel tor ut* Page 2 of 3 g-OMUl Gcttm? a print Histore *7 EAQ Classified rate The Spilman firm Website says that Dawley has, "defended toxic tort actions and citizens suits" and "negotiated terms and conditions o f consent degrees with state regulatory agencies in enforcement actions." In a DEP news release, Dawley w , Y.u* * ,, ;% . ...wring avenue in my career to pursue. As a professional engineer and an attorney specializing in environmental law, there's a lot I can lend to DEP as its general counsel." Dawley is among the Spilman lawyers representing various industry groups that intervened in a federal court lawsuit over new state water pollution rules. Citizen groups filed the suit over the state's new stream anti degradation rules. They say the rules are too weak. Coal, timber, chemical and other industry groups intervened in an ; effort to avoid having the rules made stricter. In 2001, Dawley co-wrote an article in the West Virginia Law Review arguing against efforts to toughen the state's antidegradation policy. During his career as an engineer, Dawley said that he worked for a company in Massachusetts that tried to come up with alternatives to waste incineration. Dawley also said that he and his wife are members of the West Virginia Highlands Conservancy. On Monday, he said that he hasn't talked with Callaghan about any specific issues he hoped to work on at DEP. "I'm just excited about working with Secretary Callaghan and the leadership o f DEP," Dawley said. "There are a lot o f exciting things happening there." To contact staff writer K.en Ward Jr., use e-mail or call 348-1702. Write a letter to the editor. Return to today's, Search hex for related stories 000167 Law and science New face on = general counsel Hansford Street Being second can be exciting. Just ask Joe Dawley. the Department of Environmental Protection's (DEP) new general counsel. Bill Adams, DEP's first-ever general counsel, left the agency to pursue other opportunities. Now it's Dawley's turn. A transplant from Massachusetts. Dawley went to law school in Portland. Ore., and came to West Virginia as his wife, a native of Virginia, wanted to be closer to home. He had been practicing environmental law at the Charleston law firm of Spilman Thomas and Battle for two and a half years, practicing environmental law when DEP Cabinet Secretary Michael 0. Callaghan approached him. It was at a ground-breaking ceremony," Dawley said. 'He (Callaghan) told me that he was considering me for the position. I said I would think about it-I was sur prised and flattered. It's not every day that a Cabinet secretary says that he's considering you for a position in his agency." Skilled in environmental law, dealing with air. water, waste, and mining issues will be old hat for him. What seems to peak this 37 year-old's interest is making policy. Knowing that I can help navigate DEP's and West Virginia's environmental future is exciting to me," Dawley said. "I will have a direct impact on the direction of this agency." by Anne Howell Office Manager. Public Information Office Remember the TV show, BJ and the Bear, with Greg Evigan being a trucker and Bear, his sidekick, being a chimpanzee? Well, this BJ is definitely not a chimpan zee, or a trucker. Bobbi Jean Chestnut, or B .. is the new administrative secretary for the Departmer.t of Environmental Protection's (DEP) Office of Oil ar.d Gas. Bobbi started at the DEP on Aug. 1. She p re v i ously worked for the Department of Health and Human Resources (DHHR) in its purchasing office, then * ent to DHHR's Office of Environmental Health Serv ices. She was the procurement contact for that office. B. J. and husband Alan have two children. Megan. . years-old. and Jacob, 8 years-old. The children \een B. J. and her husband very busy with sports-basKem. softball, cheerleading, football, and soccer. They reside in Belle. B. J. likes working for the DEP. "1really like my ~ she said, with a big smile on her face. But law is not all that Dawley is skilled at. His first career was that of a chemical engineer. He worked as an engineer for seven years. (As an engineer,) I worked with lawyers, concerning the Clean Water Act," Dawley said. "It was interest ing, and I thought I'd like to know more about the law. So. I decided to go to law school. Having the back ground in engineering and law, I am able to put law and science together." DEP now has a calendar of events on the Web! Check it out at: www.dep.state.wv.us. It's that simple!! See what's go in g on with the DEP! Page 7 000168 Tanya B. Johnson F rom : Subject Stephanie R. TYrrrermeyar Friday, November 02,2001 3:00 PM ABOlINCASArneJ.dap.state.wv.us' OSTAATSQmai.d stata.wv.us'; M. Ann Bradley: Joseph M. Oawtey Screening Level Definition Armando: Below are our suggestions for modification of the definition of "screening level." There is support in EPA guidance documents for the two sentences which have been added to the end. We can provide those at your request. Screening Level: the concentration in a specific media such as air, water, or soil, that is likely to be without an appreciable risk of deleterious effects during a lifetime in the human population. Screening levels generally serve as a basis for determining the need for further investigation. Exceedance o f a screening level does nnr automatically imply the need for corrective action. .S tfp h flv u ^ R_ Spilman Thomas & Battle P.O. Box 273 Charleston, West Virginia 25321-0273 304-340-3803 CONFIDENTIALITY NOTE: T hu email message is for the sole use of the intended recipients) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited If you are not the intended recipient. ease contact the sender by reply email and destroy all copies of the original message. 000169 EXHIBIT A_ EID1 2790 STB000168 S a n ftG a ie B usiness Per* 500 Tracv Wav Charleston. WV 25311-1261 130-n 3-15-5667 Fax (304) 345-1519 Chestnut Rjdge Road 8 Suburban Court Morgantown. WV 26505 i304)598-5600 Fax (304) 598-5608 PLEASE REPLY TO CHARLESTON K te.sSi* n vh' " Jam es C P eier^on; W Kent Caroer C. Michael Bee Harry G D eitre: Sanara Brtnnsrr.ar. H r Susan B Tuck; -- Kelli B Hill V u F a c s im i l e : 558-4255 O rjclnal to Follow July 9, 2002 Writer's E-mail Address rehill hpcbd.com Perry D McDaniel, Chief West Y'irgima Department of Environmental Protection Office of Legal Services 1356 Hansford Street Charleston, WV 25301 Re: Leach, et al. v. E. I. du Pont de Nemours arid Co., et al Civil Action No 01-C-608 Circuit Court of Wood Countv. West Virginia______ Dear Perry: It is my understanding that our computer expert, Charles Justice, met with you, John Dunlap, and Attorney Joseph Dawley, yesterday morning at approximately 10 a.m., at the office of the West Virginia Department of Environmental Protection I am not certain what role Mr Dawley played in this meeting, as his law firm represents DuPont in our class action lawsuit pending in Wood County. West Virginia I was not aware that counsel for DuPont would be included in your meeting Please correct me if Mr Dawley was there in some capacity other than in representing DuPont's interests Nfr Dawley has not responded to our request yesterday for clarification as to who he represents ;n this matter Charlie Justice informed me that Mr. Dunlap possessed a document that detailed the steps that he has taken since Charlie Justice first met with you regarding document retrieval. .Although you would not permit a copy of this document to be given to Charlie Justice, you informed him that you would submit an affidavit within the next two days, outlimng the steps that have been taken to retrieve pertinent documents. It was related to me by Mr Justice that Mr Dunlap stated that the following procedures had been undertaken to retrieve documents: 1 Dr Staats' old computer was retrieved from storage. 'CERTIFIED CIVIL TRIAL SPECIALIST BY NATIONAL BOARD OF TRIAL ADVOCACY Z LICENSED ALSO in NI'-'-ESOTa tCERTIFIED CIVIL TRIAL SPECIALIST BY .v a TIO.^AL BOARD OF TRIAL ADVOCACv LICENSED ALSO Y4INH :H" : 00170 P * C E I V E a jul 1 8 Z0Q2 Office of Legal Serv ices 1356 Hansford Srrtet Charleston. WV 35301 Telephone Number 304.555-9 i60 Fax Number 304-555-4555 West Virginia Department o f Environmental Protection 3ob Wise Governor Michael O Cai.ac-jr. Cabinet Sec:::ar- July 15, 2002 VIA FACSIM ILE AND U. S. MAIL R. Edison Hill, Esquire Hill, Peterson, Carper, Bee & Deitzler NorthGate Business Park 500 Tracy Way Charleston, WV 2531 1-1261 John R. McGhee, Jr., Esquire Kay, Casto & Chaney 1600 Bank One Center Virginia Street East Charleston, WV 25301 Heather Heiskell Jones, Esquire Spilman, Thomas & Battle Spilman Center 300 Kanawha Boulevard, East Charleston, WV 25301 Re: Retrieval and Preservation of Documents related to C8 Investigation Dear Counsel: Please accept this letter as a preliminary response to the letters of July 8 from Rob 3:! ::: and July 9 from Ed Hill and to update all parties to the Wood County litigation to some of the steps taken by the Department of Environmental Protection regarding document retention ar.u retrieval. As discussed with Mr. Bilott by telephone on July 8 and as acknowledged in the letter : that date, our office inadvertently sent Mr. Bilott three copies of the same notes of TERA from the May 2002 meeting in Cincinnati. One counsel from each of the three parties (Bilott, Jones. McGhee) was provided a complete set of three handwritten notes from the meeting by letter dated July 1. By mistake, it is possible that each o f the three parties received three copies of one person's notes. Please contact me if such a mistake was made. A complete set of the three different notes was forwarded to Mr. Bilott on July 8. Regarding Mr. Bilott's understanding that the DEP does not possess any "drafts of the minutes of the May 6-7, 2002, CAT Team meeting" such representation was true only as to m> office. Dr. Staats was out of the office and I did not know, and still do not know, the status ot : n wi virfima Depsrtmrm of Environmental Protection Promoting a healthy environment." 000171 R. Edison process to prepare the minutes. I will be meeting with Dr. Staats this week and will make an inquiry as to the status of the minutes. With regard to Mr. Hill's letter of July 9. 2002, Joe Dawlev attended the July 8 meeting with John Dunlap, computer technician of the DEP, as a representa:, ve of DuPont to listen to the presentation by Mr. Dunlap of the actions taken to retrieve and preserve data. DuPont had inquired about the June 20 meeting between Mr. Dunlap and Charlie Justice, and expressed an interest in notice of future meetings. Their counsel was not notified of the July 8 meeting until the morning of July 8. Based upon a phone call from their counsel, DuPont's counsel could not arrange for a computer expert to attend, but wanted someone to attend to listen to the presentation. They chose to send Mr. Dawley. The DEP is willing to accommodate all parties to the Wood County action with regard to understanding the steps taken by DEP. As explained to Mr. Justice on July 8, the DEP has taken significant steps to retrieve and preserve data existing within its computer system. Mr. Justice was informed that documentation would be provided to explain the steps taken, most likely in the form of an affidavit. In response to the numbered comments or representations in the July 8 letter, please be advised that John Dunlap has not reviewed the letter of July 8 and the DEP is not in position to affirm or refute the specific contentions therein. As was explained to Mr. Justice on June 20 and July 8, the DEP is open to all suggestions or recommendations on the retrieval and preservation of documents. The DEP is also open to additional meetings with Mr. Justice in order to verify that all available steps have been taken to retrieve and preserve data. As a preliminary response, the DEP does have a list identifying the subdirectories and documents of the documents contained on the computers used by Dr. Staats. The documents cover a wide range of issues and many pertain to ongoing investigative work by the DEP. It is the intention of the DEP to print or electronically view the documents, and conduct a review to determine which documents are relevant to the C3 investigation and whether any privileges apph. that would exempt disclosure of the documents. The review will be similar to a review done to comply with a discovery request or subpoena. Additional response to the letter of July 9 from Ed Hill will h*forthcoming afier the lette- has been reviewed by John Dunlap and agency personnel. /) cc: Larry Winter, Esq. Robert Bilott, Esq. Laurence Janssen, Esq Richard Hayhurst, Esq Perry Dh-McDariiel Chief. Office oflLegal Services 000172 Stefrhante R. Tlmmermeyer Subject Boemrnaafrdd..JJRlReeiUU'yfiusa.dupontcom'; Stephan R. Trnmermeyer Section F for MlM C O Karen: Here is a mark-up of the moat recent proposal on modeling. I w call you in the morning to explain our revisions We should be able to respond to the scavenging coefficient language by tomorrow (except that I w * be at the Clean Ajr Act seminar in the afternoon). (It try to send something out as soon as I get back to the office. Ann CONFIDENTIALITY NOTE: This email message is for the role use o f the intended retipientfs) and may contain confident! aad privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you axe not the intended recipient, please coctact the sender by reply email and destroy all copies of the original message. 000173 01527! S T B 0Q 012 V Tanya B. Johnson Subfftct: Stephanie R. TmTwrmeyef Wednasday, October 31. 2001 12:56 PM 'ABEN IN CASA@ m aH .dep.state.w v.us' M. Ann Bradley, Tanya B. Johnson; BemardjRwTly@uas.dupont.com' Draft M M CO MMCOOnit IO414140C ingwrt aCM iooi^ t Armando, Attached are two documents today's draft of the MuJti-Media Consent Order and a draft of Attachment A. P'ease call me if you have any questions. R_ TtinuyKdrvudLjdK Spilman Thomas & Battle P.O. Boa 273 Charleston. West Virginia 25321-0273 304-340-3803 CONFIDENTIALI T f NOTE: This email message is for the sole use of the intended reapiem fj) usd may contain confidential md privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy ail copies of the original message. 1 G00174 __ EID1527S STB000134 Tanya B. Johnson From: Subject: Stephanie R. Tmrrwmeyef Wednesday, November 14, 2001 1 07 PM 'abemncasa@mai.c3ep.3tate.wv.us` Bem ad.J.Reay^usa duponLctyn'; M. Ann Bradley; 'paul.j.bossert@usacom,; Heather H. Jones; Paula L. Durst FINAL Multi-Media Order and Attachments 'm ~ Attached is an electronic copy of the Multi-Media Order and Attachments. S t t p h a v R_ TLw.wLrmLjCr Spilman Thomas & Battle P.O. Box 273 Charleston, West Virginia 25321-0273 304-340-3803 CONFIDENTIALITY NOTE: This email message is for the sole use of the intended recipients) and may cootain confidential and privileged information. Any unauthorized review, use, disclosure or distnbuboa is prohibited. If you are oar the intended recipient, lease contact the sender by reply email and destroy all copies of the original message. 00017 EI015790J STB O 0O 291