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Frequently Asked Questions




What claims are made by this lawsuit?

This class action lawsuit was filed in Kay County, Oklahoma, on April 14, 2008, and claims that the town of Blackwell, Oklahoma, is thoroughly contaminated with toxic waste left behind by the zinc smelter which operated there from 1916 until 1974. The plaintiffs demand that the companies responsible for this contamination, Phelps Dodge Corporation and its parent company, Freeport-McMoRan Copper & Gold Inc., thoroughly clean all contaminated properties in Blackwell. This lawsuit also demands that these companies fund an ongoing medical monitoring program in order to protect the health of Blackwell’s residents.

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What is a class action lawsuit?

A class action lawsuit is a legal claim brought on behalf of a large group of people who have suffered a common injury or injustice. In this case the claim is being brought by a group of Blackwell residents on behalf of all current residents of the town, as well as past residents who currently live in Oklahoma. These lead plaintiffs ask the Court to certify the group (or “class”), which will allow the rest of the town’s residents to join the lawsuit. The Blackwell lawsuit is currently awaiting certification as a class action.

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Do Blackwell residents need to contact the plaintiffs’ attorneys in order to participate in this lawsuit?

No. If this lawsuit is certified as a class action, then all current Blackwell residents and past residents who still reside in Oklahoma will be plaintiffs, and they will share any monetary awards following a settlement or favorable verdict. Blackwell residents may, however, choose not to participate in this lawsuit.

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What is the nature of Blackwell’s contamination?

Over the course of its 58-year lifespan, the Blackwell Zinc Smelter polluted the town of Blackwell with heavy levels of lead, arsenic, cadmium and zinc. These substances are highly toxic and can cause cancer, brain damage and other health problems. Past attempts at remediation have failed, and large amounts of each toxin remain in and around Blackwell today. These substances continue to contaminate the town and endanger its residents on a daily basis.

Lead and arsenic—both byproducts of the zinc-smelting process—were dispersed throughout the Blackwell area in the form of exhaust from the smelter’s smokestacks and in waste-bearing sand, known locally as “connie sand.” For decades, the smelter’s owners gave this contaminated sand to the community for landfill, road paving and other private and public uses. The smelter also produced cadmium, and a large amount of this toxin has polluted Blackwell’s groundwater.

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How badly contaminated is Blackwell?

In December 2006, dozens of properties throughout the Blackwell area were tested for the presence of toxic contaminants. Samples were taken from house dust, attic dust, lawn soil and water from each property. The findings of these tests are alarming.

More than 76% of the tested homes had interior lead levels exceeding the safety standards published by the U.S. Department of Housing and Urban Development (HUD) and/or the U.S. Environmental Protection Agency (EPA).

More than 60% of the homes had lead levels in lawn soil higher than the State of California’s standard for contamination.

More than 90% of the properties had arsenic levels exceeding the EPA’s safety standard.

Several of the homes had dust containing 10 to 15 times more lead or arsenic than is considered safe.

Lead and arsenic are not the only contaminants that pose a danger to Blackwell’s residents. The area’s groundwater has been found to contain 4,200 times the allowable amount of cadmium, and area wells have been capped as a result.

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What health effects could these contaminants have on Blackwell’s residents?

The toxicity of lead has been recognized for thousands of years. Ingested in the form of a toxic dust, lead can cause cancer, brain damage, birth defects, seizures, lowered IQ (intelligence) scores, learning disabilities, attention deficit disorder, behavior problems, Alzheimer’s disease, fertility problems, anemia, problems with memory and concentration and death. Lead is especially dangerous to children.

Arsenic is highly poisonous, and it can be ingested in the form of toxic dust and then enter the bloodstream via the lungs or stomach. Arsenic can cause cancer, brain damage, birth defects, lowered IQ (intelligence) scores, low birthweight, kidney damage, decreased production of red and white blood cells, damage to blood cells and death.

Exposure to cadmium can lead to cancer, brain damage, nerve damage, kidney disease, bone damage, high blood pressure, liver disease and death.

Exposure to zinc can lead to the development of metal fume fever and copper deficiency, as well as altered iron function, reduced immune function and reduced levels of high density lipoproteins. The most prominent respiratory effects of zinc exposure are substernal chest pain, cough and dyspnea, while reduced lung volumes and a decreased diffusing capacity of carbon monoxide characterize the impairment of pulmonary function.

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Is lead paint the cause of Blackwell’s lead contamination?

No. Lead-to-arsenic ratio testing has proven that lead paint is not the cause of Blackwell’s contamination. Furthermore, area homes with little or no lead paint were shown to contain high levels of lead contamination. The reverse is also true: some homes with lead paint that were tested showed relatively little lead contamination. There is no connection, therefore, between lead paint and Blackwell’s lead contamination.

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Who is responsible for this contamination? Who must clean it up?

As successors-in-interest to the company that operated the Blackwell Zinc Smelter, Phelps Dodge and its parent company, Freeport-McMoRan Copper & Gold Inc., are legally responsible for any contamination related to the site or historic smelting activities.

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Phelps Dodge and its parent company, Freeport-McMoRan, claim they are cleaning everything up. Isn’t that good enough?

No. The cleanup undertaken by Phelps Dodge and Freeport-McMoRan is dangerously inadequate. If these companies are allowed to carry out their plan, Blackwell will remain contaminated and its residents will still be at risk. Why? Because these companies are not required to remove all of Blackwell’s contamination—they are required to remove only some of it.

For example, to meet their minimum cleanup requirement for the lead contamination, Phelps Dodge and Freeport-McMoRan must reduce the lead levels in Blackwell’s lawns and playgrounds—areas which children frequent—to 750 parts per million (ppm). The U.S. Environmental Protection Agency (EPA), however, has set the lead safety level for play areas at 400 ppm, a much safer standard. If Phelps Dodge and Freeport-McMoRan are allowed to go forward with their own cleanup, Blackwell’s children could be living and playing in areas that are nearly twice as contaminated with lead as the minimum guidelines set by the federal government.

These companies have also failed to develop a plan available to all Blackwell residents. Under their plan, only those homes whose lawns are found to be contaminated will be eligible for a cleanup. Any Blackwell homeowner whose house is contaminated but whose lawn is not will not be eligible for the companies’ cleanup.

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What should I do if I am concerned about the possible contamination of my home and property?

Residents concerned about the level of contamination in their home or on their property should contact us in order to arrange for contamination testing. These tests are free and you will receive the results.

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If I contact the attorneys and have my home or property tested, will my name be kept confidential?

Yes. All contact with the plaintiffs’ attorneys is strictly confidential. Your name will not be released to any other Blackwell resident, included in any legal documents or made public in any way without your permission.

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How will this lawsuit affect my property values?

This lawsuit seeks to force Phelps Dodge and Freeport-McMoRan to clean Blackwell completely and thoroughly, which we believe will be beneficial to local property values. If, however, Phelps Dodge and Freeport-McMoRan clean Blackwell only to the minimum levels set by the Oklahoma Department of Environmental Quality (DEQ), then portions of the town will still be contaminated according to federal guidelines. This lingering contamination could lower Blackwell’s local property values.

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I have already had my property tested through Phelps Dodge’s soil sampling program. Should I have the attorneys test it again?

Yes. Attorneys representing the plaintiffs in this lawsuit believe the testing methods used in the past by Phelps Dodge’s soil sampling program were flawed. The attorneys also believe that the cleanup levels being used by Phelps Dodge and Freeport-McMoRan are not strict enough to protect human health. All area residents, including those who have already had Phelps Dodge and/or Shaw Environmental test their properties, are urged to contact us in order to schedule a new round of free, accurate tests.

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Why is this lawsuit necessary?

This lawsuit is necessary for several reasons.

First, we do not believe Phelps Dodge and Freeport-McMoRan will willingly take the steps necessary to protect the community of Blackwell. These steps begin with a complete and thorough cleanup of all contaminated properties in the town of Blackwell, and they also include the creation of a free medical-monitoring program to track and treat any contamination-related health problems suffered by area residents. We have asked a court of law to force Phelps Dodge and Freeport-McMoRan to comply with these demands.

Next, the citizens of Blackwell deserve to have more control over the town’s cleanup. Since area residents are impacted by this contamination, area residents should be given the opportunity to approve the level and quality of the cleanup. Trying this case publicly, in a Kay County courtroom before a local jury, is the best way to give the people of Blackwell the input they deserve.

Finally, we believe it is time for Blackwell residents to take a new course of action against the wealthy corporations that are legally responsible for this contamination. By Phelps Dodge’s own admission, it has been working to clean the contamination for 10 years—and yet much of the town still shows signs of contamination today. These companies must be forced by a court of law to solve this problem once and for all.

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