THE DEFENDANTS DUMPED INDUSTRIAL WASTE, INCLUDING TCE AND PERC

 To make their case against W. R. Grace and Beatrice, the plaintiffs first had to show that the defendants actually used and then improperly disposed of TCE and PCE (perc) during the time the children used the water from wells G and H. Despite all of the early denials and contradictions by the defendants, the truth has finally begun to come out about what really happened in the Woburn factories.

Originally, the management of the Woburn plant built a wall of silence regarding their contribution to this toxic disaster. Grace "pollution control officer" Paul Shalline initially told Schlictman he did not know anything about dumping waste behind the plant. He dodged every question concerning TCE and its disposal by repeatedly replying, "I don’t know." Shalline’s sketchy testimony was then corroborated by Thomas Barbas, a painter for Grace, who claimed in his first deposition that he did not know anything about dumping TCE onto the ground or about burying any barrels of waste. He claimed that as far as he knew, the waste was collected and properly disposed of.

The wall of silence was finally broken down by the testimony of a Grace employee named Al Love. Love testified that while he was hitting golf balls during his lunch break, he watched Tom Barbas and a supervisor named Joe Meola dump containers of TCE waste into a ditch behind the plant. This testimony proved to be just the beginning of the damage Love would do to Grace’s case.

Love eventually let his conscience get to him and he finally contacted his neighbor Anne Anderson and her attorney Schlictman and spilled the beans on all of the irresponsible and illegal dumping that went on at the Grace Woburn facility.

THE SWIMMING POOL

Faced with Love’s incriminating revelations, Thomas Barbas changed his story. In his new deposition and at the trial, he testified that every day he would receive metal parts used in the construction of commercial food packing machines. He would then take TCE from the fifty-five gallon drum the plant kept in the paint shop to clean the oily metal parts prior to painting. At the end of the day he would collect all of the waste material into smaller containers and eventually dump the containers onto the ground behind the factory.

Many other employees at the Grace plant would also come to the paint shop to get some TCE from the drum. Robert Pasquerella reported that he would use the solvent to clean engine parts and then dump the excess, along with his other waste products such as cutting oil, into a gully in the back. The milky white substance would flow down the ditch into a pit of toxic chemical sludge the employees took to calling "the Swimming Pool". Others would use TCE to take the grease and smudges from conveyer belts or to clean stains from the metal tunnels where the plastic film was shrunk around food products. And when the employee would ask what to do with the waste, the supervisor would inevitably reply, "Dump it out back."

Eventually, in 1973, Barbas suggested pouring all of the waste into fifty-five gallon drums. Paul Shalline agreed, but not due to any environmental concerns. He liked the idea because then the employees would not have to go outside in the cold to dump the waste. Barbas originally hoped to have the waste drums taken away for proper disposal, but he still remembers a red flatbed truck filled with barrels waiting to be dumped into the "Swimming Pool" especially dug for waste disposal.

Exactly how many drums of TCE the Grace plant used during the time the wells were in operation will never be known, but Schlictman found a document written by Shalline that indicated that the Grace plant had used at least four drums of TCE a year every year until 1973. That translates into fifty or more drums. That corresponds with the rumors spread among some of the Grace employees of over fifty barrels buried somewhere behind the plant. The EPA unearthed six barrels but the rest will remain a mystery, for now at least.

The case against Beatrice presents many difficulties not found in the case against Grace. In Beatrice, we do not have witnesses testifying to using and dumping TCE onto the ground at the time the wells were in operation. Instead there is only the irascible tannery owner John Riley, who vehemently denied ever even using TCE, let alone dumping it. He admitted to using a small amount of Perc to waterproof the leather, but he claimed it was all properly disposed of. Facts would later show Mr. Riley to be an unreliable witness at best and a perjurer at worst.

DEATH VALLEY

The infamous fifteen acres of undeveloped land to the north of the tannery generated most of the controversy. Weston Geophysical tested the land during the summer and fall of 1986 and found numerous areas where the soil and groundwater were extremely contaminated with all five of the chemicals named in the lawsuit. The tannery had owned the land since the 1950s and used it for their production well and as events later showed, as a dumping ground for their toxic waste. The land was so toxic that the EPA had forced Riley to enclose the area with a chain link fence.

Despite Riley’s denials, the land could only be characterized as an environmental disaster from the very beginning. In 1956, Massachusetts state sanitary engineer A.C. Bolde, responding to numerous Woburn resident’s complaints about the horrible odors coming from the land, observed "large quantities of old sludge containing hair and some fleshings" along the road leading into the 15 acres. When he confronted Riley about the mess, Riley responded that it was his land and he could do what he wanted with it. While the sludge might or might not have contained TCE, it definitely came from the tannery and showed that Mr. Riley lied under oath when he claimed to never use the land for dumping tannery waste. This just began the litany of half truths and scandal that marks the conflict surrounding these 15 acres of land.

When Schlictman interviewed several Woburn residents he learned that the 15 acres became known as "Death Valley" because of the dying wildlife and the toxic odors. Resident Walter Day testified that he remembers watching tannery workers dump a whitish powder into a drainage ditch in Death Valley. Another resident, an owner of a small electrical-repair business, told Schlictman that when he was fifteen years old, he found an old road flare in Death Valley and stuck it into a block of styrofoam. When he floated the flare out onto a Death Valley pond, the entire pond erupted into flames. When the fire chief responded to the emergency, he saw hundreds of leaking drums strewn all over Death Valley. Even though he complained to Riley and made a complaint with the health department, when he returned a year later to fight another fire, nothing had changed in Death Valley. In fact, Schlictman showed the jury aerial photographs of Death Valley taken in the ‘50s, ‘60s, and ‘70s, all showing piles of debris and stacks of barrels. It took thirty years to get the land cleaned up. Laurence J. Knox, a New Hampshire well driller, testified that he saw men use a backhoe and a dump truck to finally clean up the 15 acres in 1983.

Unfortunately, the defense needed more proof that not only was the land contaminated with TCE and Perc, but it was contaminated by the tannery. A barrel salvage company called Whitney Barrel also adjoined Death Valley and they no doubt contributed to its toxicity and decay. A former Whitney employee named John Comerling testified that Whitney occasionally dumped their waste onto the road leading into Death Valley and that they did use TCE to clean some of there salvaged barrels. Riley claimed ignorance to what was happening on his land, however, Schlictman believed that a man like John Riley would not allow anyone to use his land for free. If Riley knew about the Whitney Barrel waste, he would be liable for the condition of the land regardless of whether he actually dumped TCE onto the ground. Unfortunately, Whitney Barrel died with its founder Jack Whitney, thus depriving the defense of a possible witness who could testify about what John Riley knew and did not know regarding TCE in Death Valley

The defense finally got the proof that they needed, but not in time for the original trial. It turns out that in 1983, right after he had repurchased the tannery from Beatrice, Riley had commissioned the Yankee Environmental and Engineering Research Services Inc. of Woburn to prepare an environmental study of the Tannery and of Death Valley. This integral and highly damaging report was withheld from the defense by Riley’s lawyer Mary Ryan. Not even Facher saw the report until 1986, and by then he claimed he had seen so many technical documents that he discounted the importance of the Yankee study. But he could not have been more wrong.

The Yankee engineers found tannery waste on the tannery property and this sludge could have been tested to see if it was the same as the sludge found in Death Valley. The defense never got to perform these tests however, because they were unaware of the Yankee report.

The Yankee engineers also found TCE, PCE and chloroform in the production well in Death Valley along with some found in the soil and sludge samples taken from the tannery. The study reported that "chlorinated volatile organic compounds" like the chemicals cited in the lawsuit could flow from the tannery and into the well in Death Valley. The report went on to conclude that the data "suggests that the Riley property [the tannery] is the probable source of that contamination" in the well on the 15 acres. Given this new evidence along with the evidence presented at trial, the case would have gone a lot differently against Beatrice.

Neither Mr. Riley nor Ms. Ryan have yet been sanctioned for their roles in withholding key evidence from the defense.