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Multi-Million Dollar Settlements Reached In Vapor Intrusion Cases

Posted in Citizen Suit, Contamination, Court Ruling, Government, Pollution, Uncategorized, Vapor Intrusion

In several prior posts on this Blog, we have reported on developments in two class action lawsuits filed by The Pollution Lawyers on behalf of Madison, Wisconsin area families who live near a factory owned and operated by Madison-Kip Corporation (“MKC”).  Contamination was discovered on the MKC site back in the early 1990’s. Despite oversight by Wisconsin state environmental authorities, neighboring residential properties were not tested for “vapor intrusion” (infiltration into homes of chemical gases released below the ground surface) until very recently.  These tests, when they finally were conducted in 2011 and 2012, revealed the presence within and beneath area homes of “PCE,” a carcinogenic industrial solvent that MKC had used in its manufacturing operations. Several area families asked The Pollution Lawyers to help them with this serious problem, and shortly after that the two class action cases were filed, seeking compensation for diminished property values and other damages and remediation of the contamination in the area.

Settlements were reached in both cases this summer, and they recently received necessary court approvals.  Under the two settlements, the area property owners will receive the combined total of $7.2 million. This amount is a significant percentage of the total assessed values of all of the homes in the two class areas.  Just as important, the settlements will result in extensive remediation of the environmental conditions at issue, including the installation and future maintenance (at MKC’s expense) of sub-slab depressurization systems on each home in the impacted area to protect the residents from vapor intrusion exposures while permanent measures are undertaken to completely abate the contamination in the area.

If you are concerned that your home may be impacted by vapor intrusion — whether by PCE, its sister chemical, TCE, or some other harmful substance — The Pollution Lawyers would be pleased to provide you with the most recent information available on this topic.

NOTHING “ARMY STRONG” ABOUT THIS: U.S. ARMY CONTAMINATES ENTIRE NEIGHBORHOOD, FAILS TO PROTECT ENDANGERED FAMILIES.

Posted in Contamination, Government, Groundwater, RCRA, TCE, Vapor Intrusion

The U.S. Army is showing a disrespect that borders on hostility toward its neighbors who live near the Army’s Fort Gillem base just outside of Atlanta, Georgia. The Army’s decades-long failure to protect these families from life-threatening contamination—that the Army itself had caused—has forced the U.S. EPA last week to literally order the Army to finally do something to protect them.

Here’s the story:

For much of the time between 1940 and 2011, Army personnel indiscriminately dumped a staggering array of highly toxic chemicals—including the notorious carcinogen, TCE—at the Fort Gillem base. As a result, today, the legacy of the base is eight highly-contaminated areas, one of which is a 300 acre landfill that, all by itself, has at least 356 known chemical dump locations.

Because the Army recklessly left these chemicals in the ground, the chemicals predictably bled down through the soil, infiltrated the underlying groundwater (forming at least three large “plumes” of contamination) and then oozed into nearby residential neighborhoods.  Neighborhoods full of families and kids.  Worse, many of these chemicals, such as TCE, are “volatile organic compounds” (VOCs). It has been known for years that VOCs vaporize, and then drift back upward from the groundwater in the form of gas, migrating through the soil, and surrounding and even penetrating overlying homes.  That means the nasty volatile chemicals could be in the air that people are breathing—both in their home and in their yard.

Since at least 1992, the Army has known that the groundwater underneath these families was highly contaminated with Fort Gillem’s chemicals, and that the people could be in danger from toxic gas.  For example, the Army found toxic vapors in the Fort Gillem soil as early as 1996, and even found them in the surrounding neighborhoods in 2003.  These results should have compelled the Army to immediately begin testing for toxic vapors inside of and surrounding the homes.

But that didn’t happen.

No, the Army didn’t start this vapor testing until the summer of 2014—more than 20 years after it first knew there was a problem.  And, when it finally did the testing, the Army found that most of the homes tested had toxic vapors inside them.

The EPA’s written September 24, 2014 Order RCRA-04-2014-4251 documents just how thoroughly the Army’s contamination has inundated the surrounding neighborhoods, threatening the lives of the people who live there.  According to the EPA:

(1) The chemicals dumped at Fort Gillem “have been identified in the soils, sediments, surface water, groundwater, soil vapor, indoor air and ambient [ie, outside] air in and around the residential properties near” Fort Gillem.  (see Order, p. 10, paragraph 13) (my emphasis).

(2) Those in danger from the contamination include “adults and children, with sensitive populations in women of child-bearing age and pregnant women [. . .] both young children and the elderly may be included in a sensitive population group.”  (see Order, p. 10, paragraph 13 d).

But, for as scary as this sounds, it was nothing new to the Army. For years, the Army has known how badly it had contaminated the neighborhoods near Fort Gillem, and that the people might be breathing the toxic vapors.  But it did nothing about it.  And so the EPA had to step in with its order, very specifically telling the Army what it had to do in the neighborhoods.  For example:

(1) “evaluate[] whether indoor and/or ambient air in residential and other properties surrounding the former Fort Gillem contains hazardous constituents”;

(2) “document[] the levels of such constituents”;

(3) “determine[] the level of risk posed by those constituents to the residents, owners, employees, students and invitees of the properties surrounding the firmer Fort Gillem”; and

(4) “mitigate[] any unacceptable risk to those persons.” (see Order, p. 13, paragraph 27).

In simple terms, EPA told the Army: “find out if the people are in danger, and protect them”.

That this had to be said to the Army, decades after it dumped the very chemicals that the Army knew people were likely breathing in the neighborhood, is a disgrace. The Army knew it had put its neighbors’ lives in danger, but did not have the decency on its own to try to protect them.

Don’t bet any important money on the Army obeying the EPA’s order.

Supreme Court Victory for Human Health and the Environment

Posted in Citizen Suit, Contamination, Court Ruling, Fracking, Government, Groundwater, PCE, Pollution, RCRA, Uncategorized, Vapor Intrusion

In a recent decision described by EPA Administrator Gina McCarthy as “a resounding victory for public health and a key component of EPA’s efforts to make sure all Americans have clean air to breathe,” the Supreme Court backed federally imposed limits on smoke stack emissions that cross state lines.  The ruling, issued on April 29th, upholds rules adopted by EPA in 2011 that force polluting power plants to limit the emission of pollutants that ultimately contaminate air in downwind states and cause smog and acid rain.  The Supreme Court held that under the Federal Clean Air Act, the EPA can regulate states that do not adequately control downwind pollution.  According to the EPA, the reduction in air pollution will result in hundreds of billions of dollars in health care savings and prevent more than 30,000 premature deaths.

As acknowledged by the EPA and public health agencies, environmental exposures to contaminated air and water are significant risks factors in human illnesses, including cancer.  Unfortunately, decades of improper chemical disposal has left a legacy of thousands of contaminated waste sites across the country.  As a result of this legacy — today — homeowners from coast to coast are learning that their homes have been contaminated with cancer causing chemicals like TCE, PCE, Benzene and Vinyl Chloride. 

Hopefully, the Supreme Court’s recent ruling will spare future generations from the very real consequences of environmental pollution.

 

Minneapolis Families Told of Looming Vapor Intrusion Threat 3 Decades Later

Posted in Citizen Suit, Contamination, Government, Groundwater, Pollution, Uncategorized, Vapor Intrusion

Late last week the Minnesota Department of Health notified several hundred residents of the Como neighborhood that they may be threatened by vapors containing cancer causing chemicals released from the former General Mills facility on East Hennepin Avenue.   A review of the records shows that General Mills and the State have known about this problem dating back to 1981!  And, believe it or not, General Mills shut off its remedial pumping system 3 years ago.  Now, residents are being told that levels of these cancer causing chemicals 10 times the State screening standard have been measured in their neighborhood.  They are being asked to allow sampling underneath their homes and are being told that if the chemicals are discovered above “acceptable” levels, General Mills will install subslab systems to take care of the problem.  Recent releases from the State concerning the problem can be found here.

Critical questions must be answered.  Among others:

  • How long has General Mills and the State known of the vapor intrusion threat to these families?
  • Why hasn’t the problem been cleaned up?
  • Who is going to determine what amount of these chemicals is “acceptable” on these properties and how is it going to be determined?
  • Who is going to compensate these families for the damage to the value of their properties?

Our experience teaches us that neither the polluter nor the regulators who have been “on the job” for decades can be relied on to provide answers to these questions.  Neither are motivated or equipped to get to the bottom of it.

 

 

New Illinois Vapor Intrusion Regs Offer Cold Comfort to Illinois Families

Posted in Citizen Suit, Contamination, Government, Groundwater, Pollution, Uncategorized, Vapor Intrusion

Late this summer Illinois finally implemented regulations designed to consider the vapor intrusion pathway when looking cleanup of polluted sites within the State.  Like our State’s approach to many issues of critical public concern, the action is a day late and a dollar short.

Vapor intrusion refers to the migration of harmful industrial chemicals into the air inside structures, including homes.  Industrial pollution frequently contains toxic levels of “volatile” chemicals.  When that pollution finds its way into the soil and groundwater it migrates from those media through the air and into buildings.  And it collects.  And it exposes inhabitants to those chemicals on a 24/7 basis, even while they’re sleeping (unlike polluted water which only exposes people when they consume it  or use it for bathing). The threats presented by vapor migration have been understood for decades.  For more than a decade, we’ve been representing families whose homes have been invaded and are threatened by these chemicals.  Not only are there threats of illness, there is significant damage to the value of their properties.  Who would knowingly buy a home with such a problem?  Who would knowingly sell one without fixing the problem?

Effective late July, 2013, new Illinois Pollution Control Board regs require that owners of properties who are seeking No Further Remediation letters (NFRs) under the State’s Tiered Approach to Corrective Action program examine the vapor intrusion pathway among the other exposure routes (eg, ingestion) when trying to get an NFR.  The State is supposed to consider this when deciding whether to issue an NFR and on what terms.

Illinois is a bit late to this party.  Many other States recognized the significance of this problem years ago.  But most importantly, Illinois’ regs have no application whatsoever to the sites which likely present the greatest threat to families in the State – the ones which have already received NFRs under the   vastly inept standards of the past.  There is no requirement under these new regs that such sites be re-examined.

One of the first cases we brought on behalf of families was one where hundreds of their homes were supplied with polluted groundwater.  The case came to our attention because the State was on the verge of issuing an NFR to a big company armed with high priced lawyers and consultants.  It was lucky indeed that one of the families who had heard about the NFR process decided to test the well in their home and the cancer causing chemicals dumped by that company for decades were discovered.  As a result of our lawsuit, an enormous problem was uncovered.  The federal EPA got involved.  Many millions were spent on cleanup.  The families were provided with a clean and safe water supply as well as the funds to install systems to protect themselves from the threat of vapor intrusion.

There can be little doubt that there are other such sites where NFRs have been issued without an examination of the vapor intrusion threat.  The regs do nothing to address that sleeping giant.

The regs suffer from other inadequacies as well.  Vapor plumes can very difficult to detect and to define.  The harmful gases are much like clouds, or puffs of smoke or steam.  Now you see’em; now you don’t.  They migrate much further than the polluted soil or groundwater they come from, and can move in different directions.  They are influenced by factors which are highly variable, such as soil moisture, barometric pressure, geology and things which facilitate movement, like trenches, sewer pipes and the like.  For that reason investigation, to be meaningful, requires a depth of analysis beyond that required by the regs and beyond that within the technical wheelhouses of most consultants and regulators to be sure.

Bottom line: these new regs are not cause for celebration.  They are cause for concern.  And forwarned is forarmed.

Looming Vapor Intrusion Problem In Muskegon Michigan?

Posted in Citizen Suit, Contamination, Government, Groundwater, Pollution, Uncategorized, Vapor Intrusion

On Tuesday September 10th  local media reported that investigation of the former Burgess-Norton plant on Nims Street in Muskegon continues to drag on. Click here to read the article.  A closer look reveals a troubling, and far too common scenario…….the precise scenario Shawn Collins discussed in his most recent blog post.  We have a severe contamination problem…….highly toxic cancer causing chemicals (TCE) in an approximate mile-long plume just feet below what looks like hundreds of homes in Muskegon.  The regulator, MDEQ, has known about it since at least as early as 2006, and likely before.  The concentrations of chemicals exceed standards which require a comprehensive investigation to see whether there are any vapors collecting inside or under the homes.  No such investigation has taken place.  Key questions remain unanswered.  Among others:

  • Are toxic vapors from the plume in, or under, any of the homes sitting on top of the hot plume?
  • When will we know?
  • How long have the regulators known about the problem?
  • How long has the company known?
  • Why haven’t the residents been taken out of harms way?
  • Is it safe for them to stay in their homes?
  • Will they be able to sell their homes?

The polluters and regulators must come to understand that these problems are not science experiments that can drag on for decades.  The people directly affected deserve immediate answers.  We could have, and should have, known the answers years ago.  There is no justification for further delay.

 

Contamination Victims Deserve a Lawyer, Too

Posted in Citizen Suit, Contamination, Court Ruling, Government, Groundwater, Pollution, Vapor Intrusion

Our work for contamination victims typically starts out like this:

A group of families get “bad news”.  They’re told — often at a community meeting in the basement of a local town hall or church — that their water supply has just been tested, and that dangerous industrial chemicals are in the water they drink and bathe in.  Or maybe that the contamination has slipped inside their homes in a “vapor” form — called “vapor intrusion” — and now it’s been detected in the air they breathe while they’re sleeping at night.  Sometimes, the bad news comes in a certified letter, or the families read about it for the first time in the local newspaper.

Sometimes, they are told who the environmental culprit is, sometimes not.  Sometimes, they get a lot of technical blah, blah, blah about how government or the polluter couldn’t possibly have known any earlier that the families were in danger.

A bad day for these families, no matter how you slice it.

That’s when we get called.  Understandably, these people are shocked, angry, hurt and feeling betrayed by those whom they had trusted to protect them.  They’re scared, really.  Wouldn’t you be?  So, they want someone who will tell them what’s really going on, and, if necessary, who will fight for them… to fix the problem, or at least try to make things better.  They want some sense of peace and security restored to their homes and neighborhood.

They hire us, because this is what we do.  We fight for these families.  We tell them the truth, and enlist the court system to make the polluter clean up and pay for the damage it has done.  And one of the first things we do is we meet with these folks, and start giving them facts in response to their questions.  Questions like:

  • What’s the chemical involved here, and how dangerous is it?
  • How far has it spread?
  • How long has it been in my water or home, or both?
  • Can I still sell my home?
  • How long has the (polluting) company known about this?
  • How long have my local environmental officials known about this?
  • Can the contamination be cleaned up?
  • How long will it take?

We usually address these questions in a very public way — at public meetings, or in the media — in order to get truthful information out to as many people as possible, as quickly as possible.  And, if we believe that the problem is bigger than the families are being told (it usually is); or has been around longer than they are being told (it usually has been); or has been allowed to linger and even worsen due to the inaction of the polluter and government (it usually has been), then we say that, too.  We’re as blunt and honest as we can be.  We’re not trying to win friends, or run for office.  We’re trying to get the truth out to people who really need to know it, and deserve to know it.

That’s when the ”anti-lawyer” smear campaign starts:  “Why do these families even need lawyers?”  “These lawyers are just here to make money, and trouble.”  “The lawyers are going to sensationalize the problem, and hurt property values.”  “Why can’t these families just trust government to fix the problem…after all, they’re already paying taxes to the government?”  “Everything was fine until these lawyers showed up.”

This smear typically comes from the polluter, the government’s environmental regulator, or even sometimes from members of the media — who are asking questions planted by the polluter or government.  They know that most people don’t like or trust lawyers, and so they invoke this anti-lawyer sentiment to try to damage us in the community as early as possible.  They even portray our clients as greedy and whiney… interested only in parlaying an environmental tragedy into a big-money “score”.

When I hear this stuff, I always think: “Who the hell are these guys to be saying this?” “What a bunch of hypocrites.”

Why “hypocrites”?

Because the polluter has usually had a small army of big firm lawyers (not to mention high-priced environmental consultants) already working for a decade or more.  They’re trying to prove to the government’s environmental regulator that the contamination problem is not really their client’s fault; not really very serious; and not really deserving of an expensive clean-up (or any clean-up at all).

In other words, in the polluter’s world, the polluter gets to have a lawyer, but its victims don’t.  The long ago “lawyered-up” polluter resents it when the victims of its contamination want a lawyer to protect their rights, too.  No wonder.  The polluter has worked so hard for so many years to keep the contamination problem as quiet as possible, and to portray it as insignificant as possible, that when we show up, we pose a real threat to its years of investment in this secrecy and deceit.

Basically the same goes for the government regulator… the one who was supposed to be protecting the people against the contamination… or at least telling them about it, so they could protect themselves.  Like the polluter, the regulator has had a team of lawyers long at work on the contamination.  In fact, by the time we get involved on behalf of the victims, the lawyers for the polluter and the lawyers for the regulator have usually been working together for so many years that they have even started to sound alike, like an old married couple.  “We don’t think that the contamination problem is very wide-spread, or very dangerous, or that any more testing needs to be done to even check to see if we are right,” is their joint mantra.

The government regulator likewise resents that these families-in-danger are getting a lawyer, because, up to the moment when we bring the contamination problem into a public court room — in the form of a lawsuit — the regulator and polluter have had total control of defining the seriousness of the problem, and what will be done (if anything at all) to clean it up.  They have been accountable only to one another, and only privately, out of the sight of the people with the most to lose if they are wrong.  However, when we bring the case to court, in front of a Judge, we ask the Judge to “take control” of determining how serious the problem is, as well as how—  and how quickly — it will be cleaned up.

Almost invariably, the court process results in the regulator winding up with serious “egg” on its face.  This is because we prove the problem to be far more serious than the regulator had announced it to be, and the regulator to have been far less competent and diligent than it would have people believe.  In short, the regulator very often gets embarrassed, and so, like the polluter, the regulator would rather that the victims not have a lawyer at all.

In our experience, the typical contamination problem has been developing for 25-50 years before the victims find out about it.  The contamination has been in their neighborhood, or even in their homes, for decades before they find out about it.  The polluter and regulator have typically known about the problem for 10-30 years, and have had lawyers fighting for them for most of that time, before the victims find out about it.

Don’t the victims have rights, too?  Don’t they deserve their rights to be protected, too?  Don’t they deserve a lawyer, too?  Who’s got more at stake here… the polluter and regulator, who return each night to sleep, bathe and eat in un-contaminated homes?  Or the family, for whom there is no escape from the contamination, who must drink and breathe it, or find some place else to live… if only they could find anyone to buy their now-worthless, contaminated home?

Of course, these families deserve a lawyer.  The best damn one they can find.

The Anatomy Of Environmental Failure

Posted in Contamination, Government, Groundwater, Pollution, Vapor Intrusion

How long should it take to clean up toxic chemicals after they are spilled?  A week, a month, a year, 5 years?


The answer is: “decades, usually.”  Worse, often times, the answer: is “the chemicals will never be all cleaned up”.


It’s scary and sad.  But it’s true.


Here’s a recent example of a community in the State of New Jersey, where it has taken 53 years after the spilling– not to clean up the chemicals, mind you, but just to create a plan to try to clean them up:

On August 23, 2013, the United States Environmental Protection Agency announced a plan to spend $19 million to clean up chemicals first spilled in 1960 by a now defunct dry cleaner in Wall Township, New Jersey. [see the full article here.]  After being spilled (and they were spilled probably over three decades), the chemicals were allowed to seep into the ground, infiltrate the groundwater aquifer below, and spread out so that the area of contamination is now one mile wide, and two miles long.  This contamination runs in the groundwater underneath homes and business, and releases a toxic vapor that has slipped into the air of some of those structures, requiring that special systems be installed to try to minimize the impact of the vapors that are invading the homes.


Here’s the disturbing chronology, documenting how 53 years went by, and yet all we have today is a plan to clean up:

1960: the dry cleaner likely starts spilling chemicals, probably right out the back door

1990: testing of the water in area wells shows high levels of contamination

1997: the local health department learns of the test results

1999: testing begins for the presence of the toxic chemicals in the municipal water well, and in the air inside homes and businesses

2004: the site is entered on the “Superfund” list, marking it as one of the most contaminated sites in the country

2013:  EPA announces a plan to clean up the chemicals


And please understand:  the “planned” clean-up, announced just a few days ago, has yet to start.  After it does start, it will probably go on for 20-25 years or more. And—here’s the truly galling part—there is no way that the clean-up will get all of the contamination out of the environment.  Much of what was spilled is now so deeply embedded below the surface, and in the groundwater, that it will never be “all cleaned up”.


It took 39 years after the first chemical spilling for government to do any testing.


It took 14 years after those first tests to develop a plan to clean up the chemicals.


75 years after the chemicals were first spilled, they will still not be “all cleaned up”.


As bad as this sounds, it is not just a terrible story.  It is a typical story.


Typical.

NEW STUDY: PCE EXPOSURE LINKED TO VISION PROBLEMS

Posted in Contamination, Groundwater, PCE

            A study published on July 11, 2012 in Environmental Health Perspectives finds a scientific link between prenatal and early childhood exposure to PCE and adult vision problems.  The study was conducted by public health researchers at Boston University.  It studied a population on Cape Cod, Massachusetts exposed to PCE release from vinyl domestic water supply pipes.  PCE is among the most common — and dangerous — chemicals released worldwide due to its prominent use as an industrial cleaning agent and a common dry-cleaning fluid.  PCE has been previously linked to many diseases, including diseases of the vital organs, cancer, and mental illness.  (See, post on this blog dated February 1, 2012 relating to study of this same population finding a link with mental illness.)  Research continues to demonstrate that the threats to people from exposure to chemicals dumped by polluters are more substantial than those responsible for protecting us admit.  To read this study click on this link.  Prenatal and Early Childhood Exposure to Tetrachloroethylene and Adult Vision.

Got Clean Water?

Posted in Contamination, Groundwater, Pollution

Thirsty?

A drink of clean water is available in most places in our wonderful country.  It’s available on tap in our homes, at water fountains in parks and in our children’s schools.  Cool, clean aqua is available in the water coolers in our offices.  If you are thirsty – go get a glass.

A pretty simple concept, right?  Drinking water is healthy and the best hydration option.  If you are thirsty or hot or parched, go get yourself a glass of water.

Sadly, in other areas of the world, this simple concept is not even an option.

According to the World Water Council, 1.1 billion of the world’s population live without clean drinking water.  2.6 billion people lack adequate sanitation, mostly because they don’t have access to clean water.   3,900 children die every day from water-born diseases, i.e., “dirty” water.

Pretty scary statistics, right?  Still thirsty?

In places like Zambia, Africa – the families living there do not have access to a clean drinking supply.  They don’t have clean water to irrigate their gardens to grow food, and their children are especially threatened by water-borne diseases and poor nutrition caused by this lack of clean water.

The Pollution Lawyers are a proud financial supporter of the Rotary Club of Naperville Sunrise clean water projects. Our financial support will continue to strengthen a long term commitment by the Rotary Club of Naperville Sunrise to clean water projects in Zambia, Africa. Administered through the Tikondane Community Centre in Chipata, the funds support a program aimed at improving the basic health and nutrition of a population of 20,000. The program constructs wells that supply clean water for drinking and cooking as well as to irrigate gardens that produce vegetables to supplement a meager diet.   This money also provides for education and skills training, latrines, sustainable protein sources, and a new clean water well and irrigation system.  Children in particular benefit from a reduced rate of illnesses and the nutrition increases their ability to learn at school, which is also provided by Tikondane and the Rotary Club of Naperville Sunrise.

So, maybe the next time you fill up at the water cooler, or help yourself to a public water fountain, or even water the flowers in your garden, you will stop and reflect on how fortunate most of us are in America  to have access to this water.  Billions of others aren’t as fortunate.

(Blog post contributed by:  Johannah Drerup)