Toxic-waste issue boiling in Bay State. Trial likely to prompt more serious thinking about victims' compensation
For decades, an invisible toxic-waste hazard has been brewing in the underground waterways of this blue-collar, industrial community. On Tuesday, it finally boiled over into what may be one of the most visible and volatile environmental court battles ever. The trailblazing trial, in which eight families have accused two corporate giants of contaminating local water supplies and causing five leukemia-related deaths, is the first personal-injury, toxic-waste suit against a company ever to fight its way into a courtroom.
The case could serve as a precedent for thousands of similar cases around the country. And the threat of suits at even a fraction of the 850 toxic-waste sites on the Environmental Protection Agency's (EPA) Superfund cleanup list is sending tremors through the already-shaken chemical and malpractice-insurance industries.
It's not that the situation here has not had its predecessors. In fact, toxic waste seeped into public consciousness in 1978, when oozing chemical drums in New York State's Love Canal created a widely publicized community health hazard. That incident led to a $20 million out-of-court settlement for 1,300 residents and the establishment of state and federal Superfund laws that tax chemical companies and fund the cleanup of abandoned waste sites.
But the Woburn case is different. Not just because it involves deaths. And not just because it explores the alleged connection between toxic waste and leukemia. It is different because it will lead scientists to focus on legal proof -- and, beyond this, it may prompt more serious thinking about the politics of victims' compensation.
``We're like the first Model-T down the assembly line,'' says the Rev. Bruce A. Young, co-founder of For a Cleaner Environment, a grass-roots group that helped push the Woburn case into court.
Tucked away in his cluttered, wood-paneled office, the soft-spoken clergyman unravels the case's history. He focuses on the stubborn resolve of Anne Anderson, who first suspected a connection between her son's illness and the foul water nearly -- 14 years ago.
The Rev. Mr. Young, who ``begrudgingly'' accepted Ms. Anderson's theory in 1979 when he found that five other neighborhood children were medically diagnosed as having leukemia, says ``a lot of time and effort went into the first one, but once we're out the door, the next one will take less time.''
That's just what the corporate community is concerned about, even though the two companies -- chemical conglomerate W. R. Grace & Co. and a tannery subsidiary of Beatrice Foods Company -- say there is no scientific proof against them. While conceding that they contaminated the waste sites, they deny that they did so knowingly or that the chemicals can cause leukemia.
So far, scientific evidence against them has been limited to statistics: Studies by the Centers for Disease Control and the Harvard School of Public Health have shown only that the incidence of leukemia in Woburn is several times the national average rate.
In this civil trial, however, justice -- not proof -- is the central issue. For unlike criminal cases, where guilt must be proven ``beyond a reasonable doubt,'' civil cases must show only that guilt is ``more likely than not.'' So while experts have yet to prove the companies' guilt, the Andersons and others may still win the multimillion-dollar case -- or a substantial out-of-court settlement.
``The settlements may be astronomical,'' says author Paula DiPerna, whose most recent book traces the tangled history of the Woburn tale. But more important, she says, ``the Woburn case stimulates creative thinking'' on how to deliver justice to victims.
Perhaps the case will help stop ``the emasculation of Superfund,'' says Ms. DiPerna. But the toxic-waste law, which supplies funds to clean up chemical hazards, is stalled in the halls of Congress awaiting reauthorization.
``It's no secret we're running out of money,'' says the EPA's regional toxic-waste director, Merrill Hohman, noting that the agency has been forced to stop new cleanup initiatives while Superfund sits in subcommittee. And he says that as funds continue to drain, ``we may have to terminate our current projects within the next month or so.'' A victory for the plaintiffs in Woburn, he suggests, might make members of Congress want to strengthen Superfund rather than weaken it.
Many observers say there should be a victims' compensation provision in Superfund, since the court process consumes too much time and money. But Mr. Hohman -- along with officials on Capitol Hill who voted down the measure -- say that would only lead to a spate of other Woburn-type court cases, except with the government as defendant, since individuals would take their complaints to the EPA.
Sanford Lewis, legal counsel for the National Campaign Against Toxic Hazards, says that an emergency relief fund -- used primarily to move people away from dangerous sites -- would be a good idea. But he says it should not be viewed as a replacement for solutions that might be found within the court system, such as reducing the cost of bringing cases to court and enforcing strict liability for personal injury on all handlers of waste.
Another measure to ease the burden on victims, he says, would be to ``place the burden of proof on the defendants who dumped the stuff, rather than the plaintiffs who suffered because of it.''