By James Bruggers

The Courier-Journal


A proposed emissions settlement between Zeon Chemicals and its Louisville neighbors that would bar them from saying anything negative about the company is being rewritten after attorneys lost the support of their lead plaintiff and came under attack from a community task force.

And a hearing before U.S. District Court Judge John Heyburn II to determine the settlement's fairness has been postponed indefinitely.

"We told them we wouldn't be a part of it with a nondisparagement clause," said Eboni Cochran, a western Louisville resident and lead plaintiff, who hadn't agreed to the proposal. "There are a lot of changes being made. It still remains to be seen whether it will be good for the community."

Matthew L. White, a Louisville attorney who filed the case along with several others involving Rubbertown chemical companies, confirmed in an e-mail that the nondisparagement clause would be abandoned. He also said that other changes in the settlement were under discussion but that he could not elaborate while the talks with Zeon were ongoing.

Mark Riddle, an attorney for Zeon, acknowledged "further settlement discussions" but said he could not elaborate.

The neighbors' class-action lawsuit alleged that the plant's emissions are a nuisance that keeps them from fully enjoying their homes. Zeon has denied that the emissions had caused a nuisance or damaged its neighbors' property values.

The settlement -- the second involving a Rubbertown company -- had been widely criticized for its provisions that would curtail participants' rights while not providing any new pollution controls beyond those already mandated by the city.
As originally proposed, it would affect everyone who lives within two miles of the plant on Bells Lane.

Only those who live within a half-mile of the plant would receive money -- an estimated $800 to $1,200 per person, according to their attorneys. Other provisions, with a few exceptions, would bind all participating residents from:
Criticizing the company.

Filing future lawsuits over property damage, nuisance or health problems -- including death -- associated with the company's emissions.
Future homeowners also would be banned through a home's deed from collecting property, nuisance or health damages related to emissions or odors from the plant for up to 10 years after the settlement.

White and fellow attorney Peter W. Macuga II of Detroit got an earful of questions at a meeting of the West Jefferson County Community Task Force in September. The task force was responsible for launching a toxic-air-monitoring program that led to the adoption in 2005 of the tougher local toxic-air regulations.

"Without that meeting, I think it would have gone through," said the task force's executive director, Arnita Gadson, who added that she was pleased to hear that the settlement was being rewritten.

Tom FitzGerald, a Louisville attorney who reviewed the settlement for the task force, said dropping the nondisparagement clause would be an improvement and claimed provisions in the settlement that would bind future residents from making claims against the company are illegal.

A previous settlement between residents of the Riverside Gardens neighborhood and Hexion Specialty Chemicals was approved by Heyburn without much controversy. It did not contain the speech restrictions.
Several similar lawsuits with Rubbertown-area companies are pending.

A status conference on the Zeon case is scheduled in Heyburn's court at 1:30 p.m. Nov. 20.

Reporter James Bruggers can be reached at (502) 582-4645.