Chromium Lawsuit Opinion Summary: Interfaith Community Organization v. Honeywell Intern., Inc.
The following is a summary of an opinion in a chromium lawsuit in New Jersey. The summary was compiled by Steven J. German, a Chromium contamination lawyer at Weitz & Luxenberg.
There is also ample evidence that Mutual had knowledge of the health and environmental risks associated with hexavalent chromium as early as the 1920's. During the 20's, 30's and 40's, various articles, memos and studies were circulated among and between the officers and managers of Mutual. These documents, which included records now maintained by Honeywell, make it clear that Mutual was aware of the adverse health effects posed by hexavalent chromium
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *813 (D.N.J.,2003)
the record in this case demonstrates that Mutual disposed its COPR at the Site with full knowledge of the serious adverse health *854 effects caused by hexavalent chromium, including lung cancer. Mutual's own documents demonstrate that during the period it was dumping COPR at the Site, Mutual was besieged by compensation claims from its employees for nasal perforations and chrome sores suffered at Mutual's Jersey City Chrome Plant, and that Mutual knew that employees at the Jersey City plant were contracting lung cancer from exposure to hexavalent chromium. Indeed, the evidence demonstrates that Mutual even commissioned a special study to explore alternative disposal methods for its COPR in Jersey City, the results of which caused Mutual's president to acknowledge that the company's chromium waste presented a "danger" and "might cause a great deal of trouble." Such knowledge necessarily put Mutual on notice of the serious potential health and environmental hazards posed by the COPR it was disposing at the Site. See, e.g., Jersey City 1987 WL 54410 at *9; T & E Industries, 123 N.J. at 395, 587 A.2d 1249.
The Court rejects Honeywell's argument that Mutual's knowledge about occupational health hazards associated with chromium did not equate to knowledge that its COPR could present health or environmental risks to the public.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *853 -854 (D.N.J.,2003)
The Court further finds that Mutual's own documents strongly suggest that Mutual actually knew during the period prior to its sale of the ECARG Property to Amy Joy in 1954 that Mutual's COPR had the potential to cause lung cancer and/or adverse health effects. This fact is demonstrated by evidence in the record including: (1) a 1937 study conducted by the Mellon Institute led the Vice President of Mutual to conclude that use of the COPR as a fertilizer would be "dangerous" and pose "a great deal of trouble"; (2) a 1951 internal Mutual memorandum in which the Vice President of Mutual was informed of high concentrations of hexavalent chromium in the air at the "Residue Department" at the Jersey City Chrome Plant; and (3) a 1953 study by U.S. Public Health Service (in which Mutual was a participant) in which it was concluded that "pulmonary carcinoma found in this industry is associated primarily with the roast and residue materials ", that acid soluble chromium compounds thought to be carcinogenic appeared "principally in the residue," and that chromium was "present in appreciable amounts wherever roast or residue is encountered."
The Court further finds that despite having knowledge of the serious adverse health effects posed by chromium and its COPR, Mutual did not provide any warnings *855 to the unsuspecting public and instead irresponsibly sold the property to Amy Joy Realty in 1954, who immediately developed the Site as a drive-in theater. Significantly, there is no evidence that Mutual ever warned Amy Joy or any other subsequent owner (including Daylin) of the chromium waste or the health risks posed by the property.
The Court concludes that Mutual's behavior clearly amounts to "abnormally dangerous activity" within the meaning of the Restatement. [FN12] See, e.g., T & E Industries, 123 N.J. at 390-95, 587 A.2d 1249; Jersey City Redevelopment, 1987 WL 54410 at *6. [FN13]
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *854 -855 (D.N.J.,2003)
I find that the waste contamination at the Site presents an imminent and substantial endangerment to human health and the environment
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *815 (D.N.J.,2003)
Approximately 25% to 33% of the chromium in the COPR is in the form of highly toxic hexavalent chromium. The COPR is also highly alkaline having a pH of as high as 12. The high pH of the COPR causes the chromium to remain in its highly toxic hexavalent form rather than degrade to its less toxic trivalent form as would naturally occur in the environment. Due to the high pH of the COPR, the hexavalent chromium in the COPR is highly soluble in water and therefore freely leaches into the surface water and groundwater at the Site.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *815 (D.N.J.,2003)
As has been testified to by a number of the experts, hexavalent chromium has been classified by the EPA's Carcinogen Assessment Group as a Grade A Carcinogen through the inhalation exposure route and the EPA has ranked the potency of hexavalent chromium in the first quartile of human carcinogens. EPA has determined that hexavalent chromium is a more potent human carcinogen than arsenic, benzene and PCB's. NJDEP has also determined that hexavalent chromium is a known human carcinogen.
Both hexavalent and trivalent chromium have been found to cross the placental border so that birth defects, such as cleft pallet, skeletal defects and neural tube defects have been attributed to both hexavalent and trivalent chromium in laboratory animals. Pregnant women exposed to chromium have been found to have three times as many clinical and delivery complications. Chromium exposure has been shown to cause mutation of mammalian cells, including chromosomal aberrations.
Hexavalent chromium can enter the human cell and cause DNA protein cross links which in turn cause cell abnormality and genetic mutation. Dr. Costa sampled chromium contaminated surface water from the Site and determined that the water at the Site may cause cell abnormality and genetic mutation. Humans may be exposed to hexavalent chromium through dermal contact, inhalation and ingestion.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *816 (D.N.J.,2003)
I find that Honeywell was less than cooperative and embarked on a dilatory, foot-dragging scheme for twenty years.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *822 (D.N.J.,2003)
There is no question but that Honeywell (Allied) has known of the chromium contamination at the Site since 1982, and although they have been directed by NJDEP on numerous occasions to take steps necessary to provide a permanent remedy for the property, Honeywell has failed to do so. The trial record is replete with instances of Honeywell's avoidance tactics.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *826 (D.N.J.,2003)
This Court concludes that there are current and future pathways for the excessively *840 high chromium both at the Site and emanating from the Site to reach humans and the environment, thus putting humans and the environment at risk.
This Court concludes that hexavalent chromium is a known human carcinogen and that the seriousness of the potential harm caused to human health by exposure to hexavalent chromium is well-documented and not open to dispute.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *839 -840 (D.N.J.,2003)
This Court concludes that Honeywell's failure to delineate the deep groundwater may pose a potential risk to human health since human ingestion of contaminated groundwater from the Site is possible.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *842 (D.N.J.,2003)
As demonstrated below, the Court concludes that under each of the factors set forth in the Restatement (Second) of Torts § 520, Mutual's disposal and failure to remove the COPR at the ECARG Property constitutes an "abnormally dangerous activity" that subjects its successor, Honeywell, to strict liability.
The Court concludes that Mutual's disposal of COPR at the ECARG Property poses a "high degree of risk of some harm to the person, land or chattels of others" within the meaning of Restatement (Second) of Torts § 520. The Court reaches this conclusion on the basis of evidence discussed above, which demonstrates that: (1) Mutual's disposal of COPR has caused extensive chromium contamination in soil, surface water, groundwater and sediments at and near the ECARG Property in levels greatly exceeding all applicable NJDEP environmental limits; and (2) the COPR and resulting chromium contamination at the ECARG Property present imminent and substantial risks to both humans and environmental receptors. See, e.g., Jersey City Redevelopment Authority, 1987 WL 54410 at *4 (finding that the disposal of *851 chromium waste at plaintiff's property posed a "high degree of risk of some harm to the person, land or chattels of others" because the waste contained hexavalent chromium, a known human carcinogen, and chromium contamination in soil at the plaintiff's property exceeded NJDEP's chromium cleanup value).
The Court concludes that Mutual's disposal of COPR at the ECARG Property also satisfies the Restatement factor that "the likelihood that the harm that results [from the activity] will be great." Restatement (Second) of Torts § 520. This factor is satisfied based on the evidence discussed in Section I, supra, which demonstrates that Mutual's COPR contains highly toxic hexavalent chromium; that hexavalent chromium presents serious health risks (including cancer); and that Mutual's disposal activities at the ECARG Property continue to cause chromium contamination in soil, surface water, groundwater and sediments in levels hundreds of times higher than NJDEP's acceptable limits. See, e.g., Jersey City Redevelopment, 1987 WL 54410 at *6 (finding this element of the Restatement satisfied because chromium contamination from the waste that had been disposed of at the site at issue had "migrated and entered ... ground water"); Ventron, 94 N.J. at 492, 468 A.2d 150 (finding that mercury contamination in creek sediments satisfied this element of the Restatement, and explaining that "[d]etermination of the magnitude of the damage includes recognition that the disposal of toxic waste may cause a variety of harms, including groundwater contamination via leachate, surface water contamination via runoff or overflow, and poison via the food chain").
The Court concludes that the risks posed by Mutual's disposal of COPR at the ECARG Property could not be eliminated "by the exercise of reasonable care." Restatement (Second) of Torts § 520. As the New Jersey Supreme Court observed in Department of Environmental Protection v. Ventron, supra, "[w]ith respect to the ability to eliminate the risks involved in disposing of hazardous wastes by the exercise of reasonable care, no safe way exists to dispose of [toxic waste] by simply dumping it onto land or into water." Ventron, 94 N.J. at 492, 468 A.2d 150 (emphasis added). Just like the waste at issue in Ventron (mercury), the evidence in this case demonstrates that there was no safe way to dispose of chromium waste at a property like the ECARG Property, which is located in a densely-populated urban area, given the capacity of hexavalent chromium to cause cancer, chrome sores, allergic contact dermatitis and other serious adverse health effects in humans. See Jersey City Redevelopment, 1987 WL 54410 at *6 (finding that this element of the Restatement analysis had been met because the defendants' disposal of chromium waste on the plaintiff's property posed significant health risks against which the unsuspecting public is not equipped to protect itself). The serious health and environmental risks posed by the COPR that Mutual disposed at the ECARG Property clearly could not have been "eliminated by the exercise of reasonable care" on the part of Mutual. Restatement (Second) of Torts § 520. To the contrary, as set forth above, those risks can only be abated by excavating and removing all of the COPR from the Property.
Turning to the next two Restatement factors, the Court concludes that Mutual's disposal of approximately one million tons of toxic, highly alkaline COPR at a property located on a river and in an urban area such as Jersey City was neither "a matter of common usage" nor "appropriate to the place where it was carried out" within the meaning of *852 Restatement (Second) of Torts § 520. The Court finds support for this conclusion in the Ventron case, in which the New Jersey Supreme Court recognized that the disposal of toxic hazardous waste "is particularly inappropriate in the Hackensack Meadowlands, an environmentally sensitive area where the arterial waterways will disperse the pollution through the entire ecosystem." Ventron, 94 N.J. at 492, 468 A.2d 150; see also T & E Industries, 123 N.J. at 394, 587 A.2d 1249 (finding that the defendant's processing and disposal of radium in the Jersey City area was an abnormally dangerous activity because doing so "is particularly inappropriate in an urban setting"). The Court finds that Mutual's disposal of chromium waste at the ECARG Property clearly was "inappropriate" to the place it was conducted because, as in Ventron, it involved the disposal of toxic waste into and around the Hackensack River. See Ventron, 94 N.J. at 492, 468 A.2d 150. Mutual's disposal activities have caused hexavalent chromium to disperse throughout the environment at and near the ECARG Property, including environmentally sensitive groundwater, surface water and river sediments, at levels greatly exceeding all applicable NJDEP environmental limits.
The Court further finds that the "inappropriate" nature of Mutual's COPR disposal activities at the ECARG Property is demonstrated by the evidence, demonstrating that it was foreseeable that this 34 acre toxic waste dump created by Mutual would be developed someday as a residential development thereby exposing future construction workers, future utility workers and future residents at the Site to an unacceptable risk of harm. It is also foreseeable that such a large tract in an urban area would attract trespassers. See Jersey City Redevelopment, 1987 WL 54410 at *6 (finding that disposal of chromium waste in Jersey City was "inappropriate" within the meaning of the Restatement because "it was foreseeable for [defendants] to anticipate the utilization of said [chromium] fill in residential areas" such as the plaintiff's property).
Turning to the last Restatement factor (i.e., the extent to which the "value to the community," if any, of the activity "is outweighed by its dangerous attributes"), the Court takes notice of the fact that in Ventron, the New Jersey Supreme Court found that the disposal of dangerous toxic waste into the environment "is a critical societal problem in New Jersey," and thus that the value of such disposal activities, if any, is substantially outweighed by the serious health and environmental problems caused by them. See Ventron, 94 N.J. at 492, 468 A.2d 150. This sentiment was echoed in the Jersey City Redevelopment Authority case, in which this Court concluded that although the chromium waste at issue was claimed to have served some limited utilitarian purpose as fill, such alleged value "is far outweighed by its dangerous attributes and the risks that it posed to the environment." Jersey City Redevelopment, 1987 WL 54410 at *6 (emphasis added); see also T & E, 123 N.J. at 394, 587 A.2d 1249 (holding that because the risks associated with the handling and disposal of radium waste materials in the environment far outweigh the usefulness of radium to society, defendant's disposal activities were "abnormally dangerous").
Here, the Court has been presented with no evidence of any redeeming qualities of the COPR that Mutual disposed of at the Site. Instead, as discussed above, the record is replete with evidence that the COPR and chromium contamination caused thereby pose serious health and environmental risks, demonstrating that the "dangerous attributes" of Mutual's disposal activities far outweigh any alleged value attributed to them by Honeywell.
Interfaith Community Organization v. Honeywell Intern., Inc. 263 F.Supp.2d 796, *850 -852 (D.N.J.,2003)
see also:
Erin Brockovich
Panel: Brockovich Right about Dangers of Hexavalent Chromium in WaterYears Later, Scientists Agree w/Erin Brockovich about Chromium Risk
Earth Day
FREE information Earth Day and Toxic LawsuitsAround Earth Day, Learn more about Toxic Torts
News & Warnings
Chromium News & Warnings: Hexavalent ChromiumHexavalent Chromium water pollution & chromium land fill contamination News
