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Donaldson v. Central Illinois Public Service Company

March 9, 2000

ZACHARY DONALDSON ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,
v.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE, HANSON ENGINEERS, INC., AND PARSONS ENGINEERING SCIENCE, INC., DEFENDANTS-CROSS-APPELLEES.



Appeal from the Circuit Court of Christian County. No. 96-L-20 Honorable Mark M. Joy, Judge, presiding.

The opinion of the court was delivered by: Justice Kuehn

Four Taylorville, Illinois, families filed suit seeking compensatory and punitive damages for negligence and nuisance from Central Illinois Public Service Company (CIPS), Hanson Engineers, Inc. (Hanson), Parsons Engineering Science, Inc. (Parsons ES), and Haztech, Inc., relative to remediation of a particular area located in Taylorville (Site) that formerly was a gas manufacturing plant. All four families had a child afflicted with neuroblastoma, a cancer of the peripheral nervous system. The jury returned a verdict in favor of the four families against CIPS alone. From this verdict, upon which the trial court entered judgment, CIPS appeals. The four families (plaintiffs) conditionally cross-appeal. We affirm.

FACTS

I. History of the Site and Remediation

The history of this case begins back in 1892 when a gas manufacturing plant began producing gas at the Site. CIPS purchased the plant in 1912 and continued to produce gas until 1932. The plant was dismantled in 1939, which involved the destruction of the above-ground structures, but a large underground tank and other containers were left buried at the Site. CIPS sold the Site in 1961. In the mid-1980s, the Site was owned by Apple Contractors.

The gasification process used at this particular plant produced tar byproducts, which were commercially beneficial and used for numerous purposes. The byproduct was commonly referred to as coal tar. The specific type produced at the Site was carburetted water gas tar.

In 1980, the United States Congress passed the Comprehensive Environmental Response Compensation and Liability Act of 1980, commonly known as CERCLA, which imposed retroactive liability for the disposal of hazardous waste. 42 U.S.C. §9601 et seq. (1982). Additionally, CERCLA mandated that any person or company that owned and operated a facility involving the use of hazardous substances and later disposed of such substances notify the federal Environmental Protection Agency (USEPA) of the facility's existence. 42 U.S.C. §9603(c) (1982). CIPS was aware of these reporting requirements, and from memos obtained during the discovery process, it was ascertained that CIPS adopted a policy of not reporting the existence of the underground tanks and containers at former plants, including the Site.

In the early 1980s, CIPS, through its environmental affairs department, conducted on-site visits to all of CIPS's former coal gas plant sites, including Taylorville. The environmental affairs department prepared memos to CIPS management about the sites and about public and regulatory concerns regarding the cancer-causing potential of coal tar.

On October 23, 1985, a contractor hired by Apple Contractors to put in a septic line discovered underground soil contamination in the form of a tar-like substance. After this inadvertent discovery, CIPS's environmental affairs department disclosed information about the Site to the Illinois Environmental Protection Agency (IEPA). Without knowing the hazardous nature of the Site, Apple Contractors removed some surface soil and transported it to a nearby farm owned by the business's owner, resulting in contamination of the farm. Apple Contractors used the Site for an office and for equipment storage. Following up on a complaint about strange odors, Hanson, at CIPS's direction, started monitoring the Site and nearby areas. Hanson detected high concentrations of volatile chemicals on the Site itself, in the parking lot, and in an adjacent public park. Hanson contacted CIPS with this information, recommending immediate closure of the parking lot. Soil borings confirmed surface soil contamination, as well as contamination below the surface down several hundred feet. Other investigations completed several months later revealed the presence of a high concentration of coal tar in water and sediment some distance from the Site.

With the IEPA involved, CIPS was forced to address the problems at the Site. CIPS maintains that it fully cooperated with the IEPA. Plaintiffs contend that CIPS was at odds with the IEPA throughout the remediation process.

Phase one of the project involved an initial Site assessment. Phase one began the first week of December 1985 and focused on the nature and extent of Site contamination with soil and groundwater analyses. CIPS submitted its phase one report to the IEPA in March 1986. The chemicals discovered at the Site in which the IEPA took special interest were associated with coal tar and were known as polynuclear organic (aromatic) hydrocarbons (PAHs) and volatile organic compounds (VOCs). Some of the PAHs and VOCs found in the soil and groundwater are associated with cancers, but not specifically with neuroblastoma.

PAHs are a product of combustion and can sometimes be found at some levels in homes, tobacco smoke, smoke from burning wood, creosote-treated wood products, and some foods and beverages. VOCs are extensively used in the manufacturing process and are components of many petroleum-based products such as gasoline. VOCs are also found in cigarette smoke.

In July 1986, the IEPA notified CIPS that it would be formally required to complete the plan designed to fully characterize the extent of contamination and to completely remediate the Site. The IEPA's role at the Site was to ensure that the remediation plans were environmentally sound and in keeping with statutory and regulatory standards.

In December 1986, CIPS submitted its phase two report to the IEPA, detailing its remediation plans. Before the beginning of the actual remediation, an air-monitoring program was implemented. The air-monitoring program was designed to provide information to the contractors involved in the remediation. If the ambient concentrations of certain compounds approached certain defined action levels, the Site supervisors could take action to shut the remediation actions down. The air-monitoring program also called for the identification of an exclusion perimeter around the Site from which the general public would be excluded. The air was continuously monitored from a date before remediation began until late July 1987. From July 1987 until April 1989, CIPS continued to take weekly VOC measurements at various points around the perimeter of the Site.

The remediation began on January 20, 1987, and its initial phase lasted until February 26, 1987. Some soil removal continued for a few weeks thereafter in an area south of the primary remediation area. The assessment and initial remedation work was conducted by Hanson, Parsons ES, and Haztech, Inc., at CIPS's direction and pursuant to IEPA oversight. During the remediation, building debris, one gas holder and two separators (underground structures), and 9,000 cubic yards of excavated soil were removed and disposed of. At the IEPA's insistence, CIPS did not backfill the excavated area until the IEPA could determine whether additional soil needed to be removed. In an attempt to reduce dust emissions and volatilization, CIPS covered the hole with styrofoam and plywood sheets.

During the 1987 remediation, the air at the Site exceeded the USEPA's National Ambient Air Quality Standards (NAAQS) for particulate emissions on at least seven days. As it came time to excavate the area of the buried tank, all workers were required to wear gas masks and protective clothing. At this time, Hanson and Parsons ES discussed the relocation of nearby residents, but CIPS declined to take this action. In early February, Taylorville experienced some unseasonably warm and especially windy weather. On February 10, 1987, the air-monitoring station to the north reported an NAAQS violation. On this same date, a nearby resident became ill with an intense headache, nausea, blurred vision, and convulsions requiring emergency treatment. Her diagnosis upon discharge was that the acute attack was caused by some toxic cause. At around the same time, truck drivers hired to haul the waste away complained of headaches and nausea. The truck drivers were told that they were required to wear respirators when in the Site area.

Particulate matter varies in size and can be small enough to be easily respirable. Wind speed and direction influence dust emissions.

The excavation remained open until April 1989. CIPS and the IEPA maintained various technical disagreements during this two-year-plus time frame. The disagreement related to the scope of a further remedy for groundwater at the Site. Eventually, the IEPA agreed with CIPS's assessment of the situation and allowed the hole to be backfilled. With the IEPA's approval, continuous air monitoring at the Site ceased in July 1987. Any additional NAAQS violations, if any, were not detected.

The final remedial action is currently underway at the Site. CIPS was required to construct and operate a groundwater pump and treatment system. The system is currently operating and will be maintained until the IEPA's groundwater cleanup objectives are met.

II. Plaintiffs

The minor plaintiff Zachary Donaldson was conceived in December 1987 and was born on September 7, 1988. He was diagnosed with neuroblastoma in March 1989. From August 1986 until March 1987, the Donaldson family resided approximately one mile from the Site. In March 1987, the Donaldsons moved to a site approximately three-quarters of one mile from the Site. The Donaldsons do not remember specifics of any exposures.

The minor plaintiff Chad Hryhorysak was conceived in April 1989 and was born on January 12, 1990. He was diagnosed with neuroblastoma in March 1990. From 1985 to 1989, the Hryhorysak family resided approximately three miles from the Site. The Hryhorysaks also know few specifics about any exposures but do know that they visited the public park on several occasions during the relevant time frame.

The minor plaintiff Erika May was conceived in February 1989 and was born on November 27, 1989. She was diagnosed with neuroblastoma in January 1990. The May family moved around quite a bit over the years, and so from 1985 until 1989, they resided anywhere from one-half of one mile to eight miles from the Site. Erika's mother knows that she was in the public park adjacent to the Site but cannot provide specific dates. Otherwise, few specifics are known about any exposures.

The plaintiff's minor decedent Brandon Steele was born on March 17, 1978. He was diagnosed with neuroblastoma on August 9, 1991. Brandon Steele passed away on January 18, 1993. At their residence, the Steeles were not on city water. Their water came from a well located on their property. Their water was tested and showed no signs of contamination. From 1985 to 1989, the Steeles resided approximately two miles from the Site. The Steeles know few details about any exposures.

III. Neuroblastoma and Expert Testimony

Everyone is in agreement that the number of neuroblastoma cases in Taylorville is statistically above normal. The cause of those neuroblastomas was the focal point of this case.

Statistically, 9 out of every 1,000,000 children born develop neuroblastoma. In 1988, Christian County, where Taylorville is located, registered 520 live births. The fact that four Christian County children developed neuroblastoma within the span of a little over two years is overwhelming.

As of yet, there is no established precise cause of neuroblastoma. Neuroblastoma is a type of cancer, and as stated earlier, it ...


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