Morton’s practices questioned

The safe limits for the industrial chemicals alleged in lawsuits to have caused brain cancers in McCullom Lake are measured in parts per billion.

In one evening in February 1978, an outdoor accident at one of the defendant manufacturers might have spilled enough to fill 20 bathtubs.

A railroad car valve at the Morton chemical plant in Ringwood was left open for about eight hours and leaked 1,000 gallons of pure vinylidene chloride into the ground, according to the final draft of a 1986 report commissioned by the company.

The chemical is one of several blamed in 30 lawsuits since 2006 for brain and pituitary cancers in the McCullom Lake area.

A gravel berm contained the spill, but workers recovered only 55 to 80 gallons of it, the draft report stated. But most of these details were omitted from the final version sent to the Illinois Environmental Protection Agency.

Omitted was the 1,000-gallon amount, the eight-hour spill length, and the fact that most of it entered the ground. The final report instead told the IEPA that the spill was “contained within a frozen bermed area and 55 to 80 gallons were recovered” – not that the amount accounted for 8 percent of it at best.

The report was one of many since 1983 commissioned by Morton, and present plant owner Rohm and Haas, to determine the extent and cleanup plan for a large plume of contaminated groundwater oozing from the plant’s closed 8-acre waste pit. The plant is enrolled in the IEPA’s voluntary remediation program, meaning that the company can supervise its own cleanup if it hires accredited outside consultants and meets set goals.

Rohm and Haas attorney Kevin Van Wart said the spill was far from a secret and that the details were omitted because they were speculative and not hard fact. But ultimately, state and county authorities’ grasp of the contamination relies almost entirely on information provided by Morton, Rohm and Haas or their consultants.

Documents obtained through legal discovery and the Freedom of Information Act indicate that:

• Morton executives wanting to avoid IEPA permit regulations withheld knowledge that their waste pit was leaking from their own attorney.

• Morton in the 1950s dumped its chemical wastes in an area gravel pit before it decided to dig its own disposal site, in part to stop the spilling of chemical waste on local roads.

Privileged information

Morton executives in December 1973 privately grappled with the fact that the 8-acre, 15-foot-deep waste pit at their Ringwood plant was contaminating groundwater.

It is a fact that they did not report to the IEPA until a decade later, a Northwest Herald investigative series revealed in 2007. But they also did not tell their attorney as he wrote a legal opinion that Morton’s pit did not require a state permit.

Earlier in 1973, the newly created IEPA had created regulations and permit requirements regarding the disposal of solid wastes. But the rules came with exemptions that plant safety and pollution control engineer Sid Martin concluded applied to Morton. Martin asked company legal counsel for a written opinion in a Nov. 27, 1973, memo.

Attorney Harvey Wienke delivered the favorable opinion in a Dec. 18, 1973, memo, based on the information that Martin shared with him: Morton did not need a permit to dump filter cake waste and other solids.

“I have assumed from your letter and also our telephone conversation … that there is no water pollution effecting [sic] surface, streams and rivers, or underground waters,” Wienke wrote. “That is to say, that there is no chemical alteration of any such waters as a result of the disposition of solids into the sludge pit.”

But Martin had told his supervisors two weeks earlier in a confidential Dec. 6, 1973, memo that the landfill was leaking. The company began investigating the possibility since February when it appointed Martin, who recognized that the plant had “pressing problems” regarding pollution, safety and health.

“It is felt … that if the seepage problem were brought to the attention of the state and federal regulatory agencies, we could expect action to be taken rather abruptly,” Martin wrote. “At this time, to the best of our knowledge, the problem has not been brought to their attention.”

The correspondence between Morton and the attorney accidentally was given to plaintiffs’ attorney Aaron Freiwald by the legal counsel for current plant owner Rohm and Haas. The company asked the Pennsylvania judge hearing the individual cases to rule it private under attorney-client privilege.

The person assigned to sift through legal discovery in the case ruled in Rohm and Haas’ favor, but the judge overruled the decision last month, concluding that the memos are not privileged because of the appearance that “incomplete or contradictory representations were made” to Morton counsel.

Rohm and Haas has asked the judge to reconsider, Van Wart said. He said that memos from the 1960s show that the state was aware that the landfill was leaking and had “fairly extensive knowledge” of it.

A 1968 report provided by Van Wart from the Illinois Sanitary Water Board, a regulatory agency pre-dating the IEPA, cited “seepage” as one of the reasons why there was not much water in the pit. But the report then stated that the pit appears to be an “excellent” disposal method due to “ ... the apparent lack of ground water pollution.”

Public relations

The lawsuits filed by Freiwald’s clients blame air and groundwater contamination from the closed waste pit for their brain and pituitary cancers.

Morton’s pit opened in 1961, a decade after Morton acquired the Ringwood factory. Before that, records reveal, the company pumped its waste into a nearby gravel pit.

A 1958 Morton memo laid out the company’s options as the pit filled up: Rent another one, or buy some land next to the plant and dig its own dumping area. Digging its own pit would cost Morton almost one-fifth as much as dumping in a rented gravel pit, the memo’s authors concluded.

Cost control was part of the authors’ argument for Morton digging its own, larger pit. An added benefit, the memo stated, would be that tanker trucks no longer would spill the waste on area roads on the way to the disposal site.

“Another item to be considered in this matter is that our relations with the general public would be improved,” the memo stated. “With our present system of hauling sludge away from the plant, small spills on the road are inevitable. When wet, this spillage creates a skidding hazard and in the hot dry summer months it creates a dusting nuisance.”

Neither the memo nor county land records obtained under FOIA identify the location of the gravel pit. But the Morton memo stated that the company had an agreement to cover the pit with topsoil so it could be re-used for agriculture. McHenry County is pockmarked with small “borrow pits” that farmers and other landowners dug for aggregate.

Van Wart said that only nonhazardous waste was dumped into the pit and that the plant did not begin working with the chemicals at issue in the lawsuits until years later. He said the farmers’ pit was about 3 1/2 miles from the plant, although the name does not correspond with any in a 1990 McHenry County inventory of gravel pits. The inventory identifies at least 16 borrow pits within 3 1/2 miles of the plant, and records for six of them state that they may have been used to dump trash or waste.

The whole story

The Illinois Department of Public Health last month sent the Centers for Disease Control and Prevention a packet of reports and data after the federal agency agreed to review the research done on the contamination and the alleged cluster.

The packet included a 2005 report from Rohm and Haas’ consultant that mapped the contamination. The report’s maps were a foundation of the McHenry County Department of Health and other agencies’ pronouncements that contamination concerns were unfounded.

The packet did not contain memos revealed in the Northwest Herald’s 2007 series, which the IEPA and the county had since 2006, that raised questions about the accuracy of the report. It did not contain memos showing that the plant’s owners knew about the contamination a decade before reporting it, nor did it contain the 1958 memo revealing that the plant was spilling its waste on local roads en route to dump in a gravel pit – the IEPA case manager for the site received a copy at his September 2008 deposition.

Freiwald has declined to comment on government’s efforts to examine the cluster – recent court rulings in his clients’ favor could mean that the first case could go to trial in the next several months. But he said documents “speak for themselves”.

Van Wart said that the plant, under both Morton and Rohm and Haas, has been open and transparent about its operations and their environmental impact.

“The company always made good-faith attempts to do what was required to comply with the laws and properly manage its waste,” Van Wart said.

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