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Environmental Contamination, Health Impacts and Corporate Liability

Jon F. Sykes

Department of Civil Engineering

Outline

Organic contaminants in the environmentLegal cases: an evolution• Woburn Mass. Toxic Waste Trial (“Civil Action”)• Toms River NJ Childhood Cancer Cluster• Contamination of the San Fernando Valley Basin• Met-Coil Chapter 11 case, Lisle Illinois• Bechtel v. Connecticut Yankee Atomic Power

Linking environment, health and liability

Organic Contaminants in the Environment

Much of water contamination by organics can be attributed to solvents and petroleum hydrocarbons

Many species are known or suspected carcinogens:• Vinyl chloride (Erin Brockovitch movie)• Benzene• Trichloroethylene (TCE)• Perchloroethylene (PCE)

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TrichloroethyleneNon-aqueous phase liquid (NAPL) – Denser than water

Solubility in water of 1100 ppm

Readily partitions into the air

Extensive use since 1930s

Estimated use patterns suggest that 80% of TCE is used for vapour degreasing of fabricated metal parts in the automotive and metal industries.

Wide-spread contamination has resulted from its use

USEPA started measuring TCE in water in 1970s

From the EPA:Studies in animals show that ingesting or breathing levels of TCE that are higher than typical environmental levels can produce nervous system changes; liver and kidney damage; effects on the blood; tumours of the liver, kidney, lung, and male sex organs; and possibly cancer of the tissues that form the white blood cells (leukemia). Results of a few studies in some pregnant animals exposed to TCE in air or food showed effects in unborn animals or in newborns.

Route of exposure

Dermal contactIngestionInhalation

In Canada: 50 ppbUSEPA: 5 ppbNew Jersey: 1 ppb

For volatile organic compounds such as trichloroethylene (TCE) exposure is by

To protect human health a maximum concentration limit (MCL) for water is specified for TCE

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Proposed EPA MCL for TCE

If approved, MCL for TCE will be lowered to

250 ppt = 0.25 ppb

This limit is 200 times less than the current Canadian standard!

What are the implications to corporations?

Plaintiffs cases and TCE

Cases have been a learning experience for both the plaintiffs and defendants

The costs to both sides have increased significantly

What is the potential future liability?

1. One of the First Cases

CIVIL ACTION No. 82-1672-S

ANNE ANDERSON, ET AL. plaintiffsv.

BEATRICE FOODS CO. defendant

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Book by Jonathan Harr

The movie

Jan Schlichtmann

Aberjona River Valley: Woburn Mass.

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Aberjona River Valley

The Plaintiffs

Five families who allege that the cancers of their children are caused by exposure to trichloroethylene (TCE)

Cancers are leukemia and central nervous system tumors

The Combatants David: for the plaintiffs

Jan Schlichtmann (Cornel Law)

v.

Goliath: for Beatrice - Riley TanneryJerome Facher (Harvard Law)Hale and Dorr

Where: The oak and marble of a Boston courtroom

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Chronology1648 Woburn's first tannery commences operations.

1910 John J. Riley Tannery is established near the Aberjona River.

1951: RileyCo buys the 15 acres from the City and installed a production well on the site

1964: wells G and H in the Aberjona River valley were approved by the Commonwealth of Massachusetts and the City of Woburn

August 27, 1968: the date that RileyCo first had arguable noticethat wastes on the 15 acres could affect the municipal water supply

December 1978: the tannery became a division of Beatrice Foods Company. Beatrice obtained the business and real estate and assumed RileyCo’s environmental liabilities.

The Responsibility of Ownership

“One who takes possession of land upon which there is an artificial condition unreasonably dangerous to persons or property outside the land is subject to liability for physical harm caused to them by the condition..”

Chronology (Continued)May, 1979: public health officials discovered that that wells G and H were contaminated by toxic solvents including TCE• Concentrations are up to 267 ppb

1982: plaintiffs sued Grace, Beatrice and others in a Massachusetts state court

1983: Beatrice resold tannery to RileyCo; the 15 acres became the “Wildwood Conservation Corporation” controlled by John J. Riley.

1986: 78 day trial

October 1989: appeal

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The Plaintiffs Case

“In this action plaintiffs claim that they and deceased family members of some of them were poisoned through the negligence of the defendant in causing toxic waste to infiltrate the municipal water supply of the City of Woburn, where the plaintiffs reside. Plaintiffs asserted two theories of liability: (1) defendant negligently permitted others to dump toxic wastes on a parcel of wetland which it owned adjoining the Aberjona River, referred to in prior proceedings as “the 15 acres”; and (2) defendant either dumped toxic wastes from its tannery operation onto the 15 acres or negligently permitted toxic wastes dumped at the tannery site to migrate into the Aberjona Valley aquifer.”

“To prevail in tort, the plaintiffs had to establish that

1. Beatrice contaminated or allowed others to contaminate the 15-acre parcel

2. with complaint chemicals3. which travelled to Wells G and H, and4. thereupon caused plaintiffs injuries.”

A problem with Schlichtmann’s case

“Plaintiffs implicitly and explicitly represented at trial and through these extensive post-trial proceedings that there was a basis in fact for the assertion that the defendant disposed of the complaint chemicals at the tannery or on the 15 acres. At least by the close of his investigation and discovery, however, plaintiffs’ counsel knew that there was no such basis in fact.”

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Rulings in trial:

The jury could not consider failure to warn as evidence of Beatrice’s negligence because plaintiffs had not shown the existence of a special relationship that would support the imposition of such a duty.

The Jury could not consider the strict liability claim against Beatrice because there was no evidence of purposeful contamination

The TrialPrior to trial: Unifirst settles for $2m• Provides Schlichtmann with a war chest

First phase of trial attempts to prove TCE was in the water of Wells G and H from• W.R. Grace (same side of river as wells)• Beatrice (opposite side of river)

Schlichtmann’s hydrogeology expert makes critical errors in court• Therefore no proof that TCE migrated under the

Aberjona River

The Causal Chain

“We note at the onset that the judge’s factual findings render entirely moot appellants’ contention that Beatrice had a duty to warn the public about hazards on its land and to remedy such hazards. The import of the court’s findings could not be clearer: if it could not be shown that the 15-acre site was a source of the complaint chemicals in the municipal drinking water, there existed no cognizable hazard that could be the subject of abatement. In other words, warning plaintiffs about dangers inherent on the site would not have prevented harm, since it was never established that the chemicals travelled from the site to the wells.”

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The Outcome

1. Beatrice contaminated or allowed others to contaminate the 15-acre parcel

2. with complaint chemicals3. which travelled to Wells G and H, and4. thereupon caused plaintiffs injuries.”

“The post-verdict findings snap the vital third link in the causal chain”

A statement from the court

“No matter how heartbreaking were the plaintiffs’losses, nor how wrongful the conduct of the powerful defendant corporation, the law requires proof of an efficient causal connection between the conduct and the losses to establish liability. In the absence of such proof, the plaintiffs could not prevail.”

The VerdictCase against Beatrice is dismissed• As owners of 15 acres, they must still pay approximately

$65m for site cleanup

W.R. Grace settles out-of-court for $8m• Schlichtmann does not get to prove the 4th link in the causal

chain

Schlichtmann appeals case against Beatrice • Loses as he could never undo the errors of his expert• Could not prove that Beatrice negligently dumped waste or

allowed others to dump waste on 15 acres• And……..

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Post Trial Assessment of Contamination

Why is the case significant?Began the process of establishing in court the link between contamination, health impact and corporate liability

Created a critical mass of epidemiologists, toxiciologists and hydrogeologists: “gists” for future cases

Case is widely studied by “gists” and lawyers

2. Toms River NJ Cancer Cluster

The same game but a different Ballpark

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Reich Farm Superfund Site: Toms River, NJ

Reich Farm Superfund Site

Parkway Wellfield

Reich Farm Site and Parkway Wellfield

Reich Farm Superfund Site

Approximately 5000 drums (October 1971)Drums intended for Dover Township Landfill are dumped at Reich Farm with intention of recycling drums.

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Toms River

Contaminated Soils at Reich Farm

History

1971 - Illegal dumping by Union Carbide Waste Hauler1972 - Site clean-up1974 - Soil clean-up

1987 - TCE discovered in Parkway Well 26Superfund site: EPA Region II; ROD requires pump-and-treat of contaminated groundwater1988 - Air-stripper installed For Parkway Wells 26 and 28Fall 1989 – I was asked by Union Carbide to provide support to change the ROD1995 - Second soil clean-up: Thermal Desorption

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Conclusions of 1989-90 study

Well head treatment of TCE/PCE is cost effective; EPA changes ROD

Treated effluent to water distribution system• Threshold level for TCE is 1 ppb!

Did not consider species other than TCE/PCE

History: the problem gets worse

1996 – statistically significant childhood cancer cluster identified in Toms River NJ

1996Childhood cancer cluster in Toms River• Children: 0 to 19 at time of diagnosis• More girls than boys • Leukemia and brain tumors

NJDHSS, ATSDR of CDC investigate

Political support from State Governor (Whitman) and two State Senators; this is essential

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Cancer Study Cover Page

Childhood Cancers by Year

152119873523199518171986

1625199416251985142919931314198417191992242119831628199104171982262419901317198147241989041619802521198827171979

Toms River

Dover Township

Ocean CountyYear

Toms River

Dover Township

Ocean CountyYear

24 cases

Statistically Significant Childhood Cancer Cluster

0.0000

0.0005

0.0010

0.0015

0.0020

0.0025

1975 1980 1985 1990 1995 2000

Year

Exce

ss C

umul

ativ

e Ca

ncer

Inci

denc

e

Dover TwshpToms River

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November 1996

Styrene acrylonitrile (SAN) trimer found in Well 26 at concentration of < 25 ppb

Semi-volatile, not listed by EPA

Estimated MCL is < 50 ppt

The ResponseStudy is controlled by Legal team• Data acquisition; GIS data base• Bullet proof modeling and analysis• Calculate probability of exposure in the distribution

network from the contaminated wellfield

• Toxicology• Epidemiology

Gov’t: NJDHSS, NJGS, NJDEP, EPA, ATSDR

citizens group (CACCCC) represented by Jan Schlichtmann

166400 finite difference grid blocks 166400 finite difference grid blocks (208 rows x 200 columns) and (208 rows x 200 columns) and 4 vertical layers4 vertical layers

MODFLOWMODFLOWStudy Area

PumpingWell

Active Domain

Image courtesy of Visible Earth (NASA)

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Study Area Boundary conditionsBoundary conditionsMODFLOWMODFLOW

PumpingWell

Image courtesy of Visible Earth (NASA)

Digital Elevation Model for Toms River

Domain Cross Section

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Water Cycle

Monitoring Wells in 2000

Average Water Particle Paths: No retardation

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Particle Path Analysis - Visualization

30 year transient flow average water particle paths from source area with a retardation rate of 1.5

Approximate travel time of 18 years (1989)

Steady state capture zones

Groundwater modeling used to assist UWTR in Management of wellfield

Linking ModelsStochastic Contaminant Transport Model• Generate 1,000 concentration breakthrough curves for

each well resulting from each Monte Carlo trial• Blend wells to create breakthrough curves at supply

nodes for water distribution system

Water Distribution Model (WDM)• Assume conservative contaminant migration• Run WDM for a unit concentration at supply nodes

separately• Linearly scale concentrations at consumer nodes

based on time varying concentration at supply nodes• Predict historical concentration at the tap for use in

epidemiological study

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Water Distribution System AnalysisConsumer demands (when, where, and how much) dictate which pumps and wells are in operation and when they operate

Operation is highly transient, therefore contaminant modeling with EPANET must also be transient

Various models were developed for differing time periods and seasons

Stochastic Contaminant Transport – Parkway Wells

Toms River Distribution System

Pipes: 490 miles Wellfields: 9Tanks: 8

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Change in Daily Concentration at a Tap

Linking Models - Results

Cumulative Trimer Mass Entering Water Distribution System versus Cumulative Excess

Cancer Incidence

0.0000

0.0005

0.0010

0.0015

0.0020

0.0025

1980 1982 1984 1986 1988 1990 1992 1994 1996

Year

Cum

ulat

ive

Exce

ss C

ance

r In

cide

nce

Dover Twshp

Toms River

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How did it end?

Mediation and Out-of-Court Settlement for 60 cases!

$35m

Highly studied water system

3. At the same time in California

Abel et al.

v.

Lockheed Martin

Lockheed Martin Location Map

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Lockheed Facilities in Burbank

Brief Litigation History

Settlement with workers

Out-of-court settlement with class action group of plaintiffs

A second group of 2600 plaintiffs claim their cancers are attributable to contamination of water by Lockheed Martin

TCE plume in 1997

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PCE soil contamination

0.0011101001,00010,000100,0001,000,000

10,000,000

Plant B-1

Plant A-1

Plant B-6

Concentration Magnitude

Source: Excel spreadsheets provided by Foley, Bezek and Komoroske Easting [m]

Nor

thin

g[m

]

375000 375500 376000 376500 377000 377500 378000 378500

3783500

3784000

3784500

3785000

3785500

3786000

PCE Soil [ug/kg] non-detects 10 ft to 15 ftPCE Soil [ug/kg] detects 10 ft to 15 ft

Figure: PCE Soil 3 - Concentrations in [ug/kg] - 10 ft to 15 ftFigure: PCE Soil 3 - Concentrations in [ug/kg] - 10 ft to 15 ft

3D view of TCE soil contamination

3D view of PCE soil contamination

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3D view of TCE soil gas contamination

Failure of Plaintiffs CaseNo political support for plaintiffs

Lockheed Martin takes aggressive stand against Plaintiffs

Result is disqualification of one of the Plaintiffs experts – Daubert ruling

Plaintiffs cannot explain why they have been impacted when Lockheed Martin workers do not have statistically elevated cancer incidence

4. A Company Under Siege

In August 2003 Met-coil in Lisle Illinois files for Chapter 11 bankruptcy as a result of toxic torts

Class action property damage suit

Personal injury suit – 34 year old physician

Pending suits

Settlement follows AsbestosAsbestos model

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TCE Concentrations in Lisle Groundwater

Concentrations of TCE in well water are under EPA limit of 5 ppb and well below Canada’s MCL of 50 ppb!

TCE Plume

Met-coil (Lockformer) Lisle Illinois

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Lockformer Site and Soil Borings

Leclercq Class Area

TCE concentrations in Leclercq

Histogram of Measured TCE in Leclercq Area

0

5

10

15

20

25

30

35

40

45

50

55

60

0 0.5 1 1.5 2 3 4 5 10 15 20

TCE (ppb)

Freq

uenc

y

Maximum 19.5 ppbMinimum 0 ppbMean 1.822 ppbVariance 8.5 ppb2

Stand. Dev. 2.92 ppbCount 102

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SettlementMediation

Trust set up to pay future liabilities – approximately $25m

Uncontested payment for cancers and other health end points• Duration of exposure – 4 levels• Concentration of exposure – 3 levels• Cancer type – 3 tiers• Quick pay

Lifetime Risk (Percent) of Being Diagnosed with Cancer by Site

Tier I RiskHodgkins 0.215Kidney 1.165Liver 0.64Non-Hodgkins 1.955

Total Tier I 2.02

Tier II RiskBladder Invasive & In Situ 2.325Cervical 0.395

Total Tier II 2.72

Tier III RiskColon & Rectum Invasive & In Situ 6.125Esophagus 0.505Lung 6.77Leukemia 1.24Melanoma Invasive & In Situ 2.42Multiple Myeloma 0.6Pancreas 1.235Stomach 1.02

Total Tier III 19.915

Total Tiers 24.655

Interactive Liability Table

Duration Factor >20 Years 11 to 20 Years 5 to 10

Years <5 Years Concentr. Factor Area A Areas B

and D Area C Cancer factor Tier I Tier II Tier III

29 15 7.5 2.5 3.7 1.13 0.89 100 50 20

$600,000 $4,000

347

2,870

3,217

$15,025,872

Total for Cancer and Constant Quick Pay $26,507,785

Interactive Matrix to Estimate Potential Future Liabilities Related to TCE

Relative Risk Analysis - Yellow Cells are Interactive Input Parameters

Quick PayBell Weather Liability: Area A, Maximum Exposure, High Concentration, Tier I Cancer Diagnosis

Summary

MET-COIL

Target Population Total

Total Expected Diagnoses

Quick Pay For Remaining Population (Constant Value) $11,481,913

Total Cancer Liability in Current Dollars

Non-Diagnosed Target Population

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5. A Bad Contract?

The decommissioning of a nuclear power plant

Bechtel v. Connecticut Yankee Atomic Power

Bechtel receives a turnkey contract to decommission the nuclear power plant at Haddam Neck on the Connecticut RiverObjectives: soil contamination plus groundwater contamination plus contaminated plant rubble must be less than 25 mrem/yearSr 90 discovered in groundwater – MCL is 8 pCi/lBechtel requests a change order for groundwater remediation – refused by CYBechtel defaults on contractMalcolm Pirnie Inc and CH2MHill complete work for CYCY sues Bechtel for costs and punitive damages

Haddam Neck Plant Property Map

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Sr90 in groundwater

Bottom Line:

Contract language is extremely importantManagers often do not have the technical background on important aspects of a contractWin or lose, the costs of decommissioning will increase significantly as companies protect themselves from risk

What is the message?Problems inherited with takeoversFive cases• Two settled in mediation to avoid punitive damage

awards and to control liability• Two with aggressive defense – loss to plaintiffs• One case still pending

Lowering MCLs will result in future liabilitiesToxicology – evolvingContract language is criticalMove to managing watersheds rather than remediation

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Questions?