October 14, 2004

Vernay settles environmental suit with neighbor

By Diane Chiddister

In July Vernay Laboratories reached a settlement with one of its neighbors, Suzanne Patterson, who filed a lawsuit against the company over contamination on her property.

Patterson lives at 825 Dayton Street on the seven-acre Rabbit Run Farm, which sits adjacent to Vernay’s Dayton Street plants. Patterson, who has owned her property since 1985, farms organic vegetables at Rabbit Run.

The settlement of the suit is significant because “the law does allow property owners affected by contamination to not only obtain cleanup but also damages,” said attorney Robert Shostak of Athens, Ohio, whose law firm represents Patterson.

The suit is the second Vernay has settled in recent years. The first lawsuit was brought against the company by a group of neighbors in 1999. The settlement, which was reached in 2001 and approved by a federal judge in February 2002, included a monetary settlement and gave the neighbors oversight responsibility over Vernay’s cleanup efforts through an agreement with the RCRA program of the U.S. Environmental Protection Agency.

The terms of the Patterson settlement were not disclosed by either Patterson, her attorney or Vernay. “We are bound by our agreement with Vernay to not reveal the circumstances or the details of the settlement,” Shostak said.

Vernay CEO and President Tom Allen said, “We have reached a settlement that is agreeable to both parties.”

In the lawsuit, Patterson claimed that Vernay “improperly handled and disposed of its various waste streams in a manner which threatened and continues to threaten human health, and environment and the Plaintiff’s property.” The suit further states that “the Defendant knew or should have known of the toxic, hazardous and migratory nature of its solid and/or hazardous waste and displayed a knowing, wanton and reckless and/or negligent disregard for the likelihood that its disposal practice would injure Plaintiff and her property.”

Damages suffered by Patterson, according to the suit, include a loss of property value of both her home and business, emotional distress and mental anguish, including the fear of future disease, the inability to fully use and enjoy her property without risking harm to herself and others, the costs of medical testing and monitoring, and the costs of environmental testing and investigation.

Groundwater contamination in the form of the volatile organic compounds tetrachloroethylene (PCE) and trichloroethylene (TCE) have been found in two of the seven wells that Vernay placed on the Patterson property two years ago, according to Trish Polston, a project coordinator with the U.S. EPA who oversees the agency’s Vernay project.

Traces of PCE and TCE at more than five parts per billion are considered contamination, according to Polston. One well contained PCE at between 72 and 120 parts per billion and the other contained between 9 and 19 parts per billion of both PCE and TCE.

Both wells that contained contamination were located in the middle level of the Cedarville Aquifer, and no contamination has been found in wells monitoring the upper levels and the lower levels of the aquifer, Polston said.

Although both PCE and TCE are considered carcinogenic when they occur in large enough quantities, in July 2004 Vernay submitted to the EPA a human health indicator report that concluded that the groundwater contamination causes no human health threat because there are no completed pathways for water use. In other words, Vernay’s neighbors, including Patterson, do not drink the water beneath their property, but instead get their water from the Village, which comes from a wellfield several miles south of the contaminated area. The EPA approved the human health report.

In an interview, Polston said that the groundwater contamination beneath Patterson’s property should not adversely affect her business as an organic farmer, since the contamination was not found in the upper levels of the Cedarville Aquifer, which is the level that might affect the growth of plants.

Both PCE and TCE were used as metal degreasers by Vernay, which manufactured rubber parts at its Dayton Street facility for over 50 years. Last year, Vernay closed one of its two plants on that site and transferred most operations to plants in the South. The second plant is scheduled to begin shutting down this fall.

The company discovered contamination on its property as early as 1990 but did not initially reveal it. Vernay began its cleanup efforts in 1998 through Ohio EPA’s Voluntary Action Program, but those efforts ceased when neighbors filed a suit against the company and requested that the cleanup be overseen by the U.S. EPA rather than the state EPA. Cleanup efforts with the federal EPA began in the fall of 2002.

Polston said that Vernay has been a responsible partner in the cleanup efforts.

“They’ve been extremely cooperative in terms of meeting expectations and getting work done on time and in good quality,” she said. “Not all companies are that cooperative.”

According to its agreement with the EPA, since 2002 Vernay has made quarterly checks on the approximately 45 wells it has placed on its property and that of its neighbors. The wells extend throughout the area of the underground plume of groundwater contamination, which extends from the Vernay plant on the west to between Wright and Green Streets on the east, and from Omar Circle on the south to almost Dayton Street on the north.

The company has also installed two pumping wells on its property, which pump contaminated groundwater from the ground, treat the water inside the plant, then discharge the cleaned water into the Village’s sanitary sewer system. Over 20 million gallons of contaminated water have been treated so far, according to Vernay’s environmental affairs manager, Doug Fisher.

Vernay recently completed the first phase of its facility investigation report, which describes the testing results of both site and offsite groundwater and storm sewer water, according to Polston. The complete report, along with all of the company’s quarterly reports, can be found in the Yellow Springs Library.

In December Vernay will submit to the EPA the second phase of its facility investigation, which focuses on details of all site contamination, including soil samples.

By next summer, Vernay must complete its proposal on final corrective measures necessary for cleanup, according to an EPA quarterly report. At that time it will also meet with the public for comment, and will then begin the cleanup.