Appendix — Alcolac, Inc. v. Elam

Supreme Court brief1989

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BE OBTAINED, A NEW FICHE

Supreme Court, U.S,

FILED

JUN 8 1989

SEPH F. SPANIOL, JR,

S8-19924>

4 i

Qo:

fall ow

] ne i

\ he ee IO tet

No.

In the Supreme Court of the United States

OCTOBER TERM, 1988

ALCOLAC, INC.,

Petitioner,

VS.

BETTY ELAM, et al.,

Respondent.

Volume I

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

MISSOURI COURT OF APPEALS,

WESTERN DISTRICT

Alvin D. Shapiro*

LAW OFFICE OF ALVIN D. SHAPIRO

911 Main Street, Suite 2830

Kansas City, Missouri 64105

(816) 474-6824

Thomas E. Deacy, Jr. H. Gregory Skidmore

Deacy & DEACY SKIDMORE & WILKINSON

1000 Bryant Building 103 South Centre Street

1102 Grand Avenue Cumberland, Maryland 21502

(301) 724-3424

Kansas City, Missouri 64106

(816) 421-4000

Attorneys for Petitioner

Counsel of Record

3 1989

Leave to dispense with printing Appendix granted May 30

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

BETTY L. ELAM, CLARENCE ELAM and

LINDA LOU SANDERS,

ETHEL M. BERRY,

CARL C.* and JACQUELINE BERRY,

VIRGIL and DOROTHY BRADLEY,

EDWARD and MALVA GEHLKEN,

DAINIE and MARY LUCETTA LANDON, *

GWENDOLYN and JOHN C. LAWRENCE,

GLEN A. and BERNICE MILLER

CHARLOTTE A. and JOHN PHILLIPS,

DANIEL CHARLES and JOYCE PRYOR and

AMBER CROSS,

ARNOLD L.-, JOY R., JOYCE and

TAMMY SOMMERS,

JAMES R., KAY D., WILLIAM LANCE,

LISA and LYLE TURLEY,

GENEVIEVE and RALPH H. WITHERS,

Respondents-Appellants,

vs.

ALCOLAC, INC.,

Appellant-Respondent.

)

No. WD 38,105

CONSOLIDATED

Opinion Filed:

November 1, 1988

APPEAL PROM THE CIRCUIT COURT OF JACKSON COUNTY

The Honorable Tom J. Helms, Judge

Before Shangler, P.J., Manford and Nugent, JJ.

*Died during pendency of appeal and the spouse was substituted as

party by order.

= setnia Hit nd GEREN ——S PNT MRT

ELAM, et al. v. ALCOLAC, INC.

TABLE OF CONTENTS

PART ONE

I. The LItIgation HIStCOTY. cccccccccccccccsccceccccesscsess 3

II. The Alcolac Plant:

Aw TUS DESIGN ANG OPSTOtION. ccccccccccccccccsceccsccese 4

B. Startup of Operations — 197B.cceccccccccccccsesceee 8

C. Plant Operations AEter WAPORA. ccccccccccccsccececcse 23

D. 1. Opinion for the Plaintiffs

The Alcolac Operation: Opinions of the Experts. 43

Zo Opinion FOF AlSOLHScvccccccccccccceccseccscccscsces 49

TIT. TRE CHOMIGSELS. cccncsccessscevsesccseccesccccccscscccscccecs 52

IV. Residents in the Environs of Alcolac

Ae The Plaintiffs-Witnesses. cc cccccccccccccccccccvecs 66

B. The Non-Litigant Witnesses

Lo POE CHE PLOINELELSS. .ccccccvcccccesccesecccseccss 68

2. For the Defendant. ccccccvcscsccccsccccescsccescce Il

V. The Medical and Scientific Evidence... cseeecceseeee 73

A. The Family Practitioner-Dr. Donald J. Allcorn... . .73

Be. The Immunologists. .ccccccccccccescccsccccccsccsccsccce 14

VI. A. The Medical Experts and Biological Causation

Por the Plaintifts..cccccccccccesccesccesccsescee 89

B. The Medical Experts and Biological Causation

Por the DefOnGant6. .cccccccccecseccscccecscccsccsces 230

VII. Submissions, Verdicts, Judgments... .cccccccccccccccses 245

PART TWO

The Alcolac Appeal on the Negligence Causes of Action......247

I. Judgment Notwithstanding the VerdictsS.....cccceeseeeee e249

1. The Issue of Causation in Fact-The Principles..249

2. The Issue of Causation in Fact-The Argument....253

3. The Issue of Causation in Fact-The Biological

Causation Subelement..cccccccccccccccccccee 2/4

4. Disposition of the Motion for Judgment

Notwithstanding the VerdictS .....e.ee2222--281

B. Motion for New Trial

l. Expert Opinion Evidence. .cccccccccccccccccsccceecda

2. Diagnosis and Methodology... ccccccccccevece ee 2d4

3. Competency of Medical Opinion on "Nonmedical"

Causatlonecccccccccccccccccccccscccccscscccscsese 294

4. Undue Limitation of Cross-Examination..........300

Se IMNSTTUCEION NO. Deccccccccccccccsccccccesssecescedsia2

6. Increased Risk of CanCereccccccccvccevecscccseeed tS

7. Miscellaneous ErrorsS.cccccccccccccccccccceccse edad

a. Conduct of the Trialcccccccccccccceccvecece dso

b. Improper Closing Argument... ccecccecceveee dca

C. Evidentiary Errors. .cccccccccccccccccceceese330

8. Disposition of the Motion for New Trial........340

Bee SRO WELSGRES COBPGS GF AGCELOMs oc cc Seccsvecsesceccessese 340

(I)

PART THREE

Appeal of the Plaintiffs. ... 1. «+s ese ese 6 es ee 6 2 « 5G

I. Identical Verdicts as Ground for New Trial

A. A@twal Demeees . 64s ltl hl hh lh hv

B. Punitive Damages... ° os <> + 6% «4 « 2On

C. Submissibility of Punitive Damages ee oe ee ee ee ee ee

PART FOUR

Appellate Jua@qeent 2. . 6s ee es we et ee eet tll hl el

APPENDICES

A - Aerial view of Alcolac plant

B - Aerial view of the locations of residences of plaintiff and

non-plaintiff witnesses

Cc Foam storm on nearby property

D - Foam carried on Little Shaver creek

E Resume of testimony given by each plaintiff related to

environmental medical diagnosis ams

Official Alcolac memorandum concerning the failure of the

F -

liquid incinerator to function

G & H - Official Alcolac memorandum conerning excessive odor

emissions

I & J - Material Safety Data Sheets concerning risk of exposure

to epichlorohydrin

K - Resumes of evaluations of the immunological systems of each

plaintiff by Dr. Stechschulte, an examiner for Alcolac

L-1, L-2, L-3 - Typical SYMPTOMS CHART as completed and validated

by expert Dr. Carnow as to each plaintiff

M-1, M-2, M-3 - Typical PHYSICAL FINDINGS CHART as completed and

validated by expert Dr. Carnow as to each plaintiff

N-1, N-2, N-3 - Typical LABORATORY TEST CHART as to each plain-

tiff

O-1, O-2, O-3 - Typical DIAGNOSIS CHART as validated for each

plaintiff by expert Dr. Carnow

P-1 - SUMMARY OF SYMPTOMS by organ systems exhibited in common by

the plaintiffs as disclosed by history to Dr. Carnow

P-2 - SUMMARY OF ABNORMAL PHYSICAL FINDINGS exhibited in common

by plaintiffs as disclosed upon physical examination by

Dr. Carnow

P-3 - SUMMARY OF ABNORMAL LAB TEST VALUES by organ system found

in common for plaintiffs

Q-1, Q-2, Q-3 - Typical Alcolac diagnosis charts as validated by

Dr. Emmett and Dr. Kirby, examiners for Alcolac

(II)

This suit involves thirteen actions brought by thirty-

two plaintiffs against Alcolac, Inc. and plant manager Fischer

for injury to their persons and property from toxic spills and

emissions from a chemical facility in Sedalia, Missouri. The

actions, consolidated by order of the trial court, were in four

counts and each sought recovery of compensatory and punitive

damages. Only two counts were submitted to the jury: One, for

the diminished market value of the residences, sounded in nui-

sance. The other, for injury to the persons, sounded in negli-

gence. The jury, after a trial of more than four months,

returned verdicts against Alcolac and awarded to each plaintiff

on the claims for personal injury, $200,000 as compensatory

damages and $1,387,096.70 as punitive damages. The award for

property damage varied as to each claim. Alcolac thereafter

moved for a judgment notwithstanding the verdict or, alternative-

ly, for a new trial. The trial court denied judgment n.o.v., but

granted a new trial as to damages only as to each of the thirty-

ones personal injury verdicts.

The several plaintiffs appeal the order to set aside

the awards for personal injury damages on the negligence count

and the grant of a new trial on those issues. Alcolac appeals

the denial of judgment notwithstanding the verdict on both negli-

Gence and nuisance counts, the entry of judgment for property

damage on the nuisance count, and the entry of judgment of lia-

bility on the negligence count.

The motion for directed verdict by defendant Fischer was sus-

tained as to all the plaintiffs, and the motion for directed

verdict by defendant Alcolac was sustained as to the plaintiff

Edward Gehlken. Thus the causes of action of the thirty-one

plaintiffs who remained were submitted against Alcolac only.

PART ONE

The Litigation History

Alcolac commenced its Sedalia operations in May of

1978. In July of 1979 five of the thirteen plaintiff families

filed suit in Pettis County with complaints of injury from the

Alcolac operations. The five suits were voluntarily dismissed in

February of 1981. In December of 1981 the suits were refiled in

Jackson County, other suits were commenced, and eventually all

were consolidated for trial. Alcolac made answer to the peti-

tions. Alcolac also pleaded a multiple counterclaim. Count I

was for Abuse of Process: that the plaintiffs and others in

concert maliciously schemed to harass and force Alcolac to cease

Operations at the Pettis County plant, and to that end commenced

an unfounded suit against Alcolac in Pettis County, took no

initiative to advance the litigation and later dismissed the

Suit, but resumed the litigation in Jackson County = not for the

redress or remedy of any civil wrong, but for ulterior purposes.

Count II was for Civil Conspiracy: that the acts alleged against

the plaintiffs in Count I constituted a civil conspiracy. Count

Facie Tort: that the acts of the plaintiffs were

intentionally done with the purpose to injure Alcolac, and with-

out justification. The counterclaim sought recovery for compen-

Satory and punitive damages as to each cause of action. Alcolac

attempted oroof of the cause of action through the cross-examina-

tion of the several plaintiffs, but without avail. At the con-

against all the plaintiffs with prejudice. Accordingly, the

appeal and cross-appeal are from a final judgment and encage our

juaceaLtction to review.

What remained was a massive litigation of thirty-one

separate causes to action, joined for adjudication through the

amenity of consolidation, but tried, submitted and determined by

the jury as separate suits. It was a litigation which engaged

the jury from August 12, 1985 to December 23, 1985 [four and

one-half months] presented one hundred and sixty-five witnesses

as well as hundreds of exhibits, and is recorded in ten thousand

pages of transcript. The counter-appeals contest not only the

validity of the submissions and the verdicts as returned, but

also the judgment of the court which validates the proof of the

causes of action but nullifies the money amounts returned by each

verdict for personal injury and punitive damages. Our review

entails the determination of the submissions, the validity of the

verdicts, and the propriety of the judaqments entered by the court

- among the other claims of error.

The Alcolac Plant: Its Desicn and Operation

Alcolac, Inc. manufactures specialty chemical products

for industry and commenced such operations in 1950 in the city co

Baltimore. It is now an international company. The special

chemicals manufactured by Alcolac include surfactants and func-

tional monomers. Surfactants are surface active agents or soaps

used in cosmetics and a range of other products. Functional

monomers are building-block chemicals used to prepare polymers

for adhesives, plastics, textiles, and such. The Alcolac manace-

ment recognized the dangers to the environment from such produc-

tion activity and so launched WAPORA, an environmental management

subsidiary, which sells advice on pollution control to industry

as well as government.

Alcolac then sought a site in the Midwest for an addi-

tional facility, and selected an area contiguous to the city of

Sedalia. To deal with the environmental concomitant of the plan-

ned facility in Sedalia, in 1975 Dr. Vsevolod Blinoff, founder

and chairman of Alcolac, designated the top executives of the

company as an ad hoc committee. They included Charles Anderson,

Alcolac president, Peter Bouroff, Alcolac vice-president, Dr.

Jacob Bregman, president of WAPORA, and Blinoff, himself. It

befell Bregman and WAPORA to design the environmental control

system for the Sedalia facility. The design Bregman and Blinoff

envisioned was a model of environmental safety - a plant [as

described by Bregman] "that could make products that were toxic

and hazardous and yet keep them in such a manner that the envi-

ronment would not be affected." It was the specific Blinoff

instruction that Bregman and WAPORA design and construct "a zero

discharge plant" - a state of the art model. Anderson, president

of Alcolac and an accountant by training [described by Bregman as

"a bottom line kind of guy"], opposed many of the environmental

controls as tso0 costly and "a lot of baloney." The design was

Qa.

ra)

tion began nevertheless.

n" olen hae! {= - as . . ~ } )* - 4 129

The composite facility included three production build-

or the manufacture of monomers, and an environmental

rol building 2 The production from both the surfactant and

monomer plants resulted in wastes, both in liquid and vapor form.

It-was the design of the pollution control processes at the plant

to remove the organic chemical contaminants from the wastes, and

“See Appendix A. The Alcolac facility also included four bio-

Gesradation ponds, whose function the opinion describes, as well

as a warehouse and lakes.

to expunge their odors, before emission. The design provided for

carbon filters and scrubbers to remove the contaminants and odors

from the wastes, incinerators to consume the organic matter

removed from the liquids and vapors, and pipe lines to emit the

liquids and stacks to emit the vapors. It was the theory of the

design that the pollution control processes would render the

otherwise toxic and odorous wastes harmless to the environment.

To dispose of the liquid wastes, underground pipes ran

from each of the three structures to four bio-oxidation ponds.

There was also an underground pipeline between the monomer plant

and the environmental control building. It was the function o

the bio-oxidation ponds to degrade the contaminated remnants

Gischarged into them through the conduits from the Surfactant

building and the environmental control building. The bio-oxida-

tion ponds were designed on the same principle as any municipal

sewage treatment lagoon: the ponds were filled with plain water

and the bacteria allowed to develop: as the wastewaters [theo-

retically scrubbed free ang filtered of contaminants] are gGradu-

ally introduced, the bacteria degrade them. Thus, the design, as

applied to both the surfactant and the monomer wastes, intends

a |

QO,

in the case of the soap plant, the wastes were to be

treated by acid scrubbers to remove the chemical residues and

odors from the liguid and vapors. The liquid was then effused

into the biopond and the waste vapors, then also cleansed of any

acid mist, were emitted through the surfactant stack.

In the case of the monomer plant - where the toxic

chemicals were used for production - one liquid waste stream

flowed into:

= as

suspensions of undissolved organic particulates, was piped into

the liquid incinerator for burning, then through scrubbers to

clean the odors, before emission into the atmosphere as vapor.

The toxic vapor wastes from the reactors in the monomer produc-

tion process were filtered through a system of carbon beds in the

monomer building and the organic residues burned off in the "fume

incinerator" before emission.?

The design intended, therefore, that the liquid emerge

from both che surfactant and monomer plants free of organic

matter and then flow into the bioponds as uncontaminated waste-

water. It was the theory of the design that the wastewater then

biodegrade through a series of four bio-oxidation ponds, each of

which retained the wastewater for thirty days before it flowed by

cravity. into the next pond, and finally collected [after the

120-day cycle] into a sedimentation pond for reuse - either for

field irrigation or as washwater for the plant reactors.

This system of controls notwithstanding, both the

monomer and environmental control buildings were designed with

valves meant to be unlocked only for the release of wash water

orm water to the bioponds. Instead, operators in the

Tne WAPORA design for the Alcolac plant at Sedalia selected the

carbon adsorption system for the control of the pollutants from

the monomer production process as the ideally efficient alterna-

tive. It also proposed "scrubbers" to cleanse the liquid waste

from the monomer production, but only "([iJ]f£ operational testing

shows that a potential environmental problem remains after these

meascres are taken." It became evident to the Missouri Depart-

ment of Natural Resources [the official agency with oversight of

tne Alcolac operations] that the system for pollution control, as

installed and operated, was not effective to meet environmental

control standards. It was a condition of the abatement agreement

concluded by Alcolac and the Department of Natural Resources on

May 30, 1980 [as our discussion more fully delineates] that

Alcolac install two alkaline scrubbers to remove the acrylates

from the licuid waste streams and the gaseous waste streams from

the monomer reactors. They were duly installed by Alcolac.

monomer and environmental control buildings at times used the

valves to bypass the waste treatment features of the facilities

and pipe raw, untreated toxic chemical wastes directly into the

open air bio-oxidation ponds outside. Also, the wastewater from

the monomer process was intended for discharge into biopond one,

and that from the surfactant process into biopond two - [presuma-

bly, because the soap wastewater was more readily biodegraded

than the monomer wastewater]. Notwithstanding, it was the recur-

rent practice to emit both the soap wastewater as well as the

untreated monomer wastewater into biopond one, with the result

that the toxic monomer wastewater intermixed with the soap waste-

water and was borne cff the Alcolac premises as puffs of foam.

Notwithstanding also the sense of the design that the liquid

incinerator function as the means of disposal of particulate

contaminant wastes from the monomer process, the device malfunc-

tioned from the outset of Alcolac operations and, in mid-1981,

was discarded as a means for the disposal of toxic waste.

STARTUP OF OPERATIONS 1978

AKlcolac operates under license of the Missouri Depart-

ment of Natural Resources [DNR]. That agency has the primary

responsibility to enforce environmental compliance. Alcolac is

also monitored by the Environmental Protection Agency [EPA] and

the Occupational Safety and Health Administrations [OSHA].

Alcolac commenced operations in the Sedalia plant in

May of 1978. Some months earlier, in November of 1977, Bregman

had circulated to Blinoff, Anderson, Bouroff and Fischer [then

plant manacer], a memorandum cf "comments on the Sedalia plant

Start-up." Bregman had recently visited the facility and noted a

number of problems he wanted to be certain were corrected before

the onset of production. He explained: "They have to do with

pollution control systems, and very heavy emphasis on training

the plant personnel." The memorandum recommended, among others,

that all the pollution control equipment required for proper

operation of the plant be installed and tested before the "first

batch” of production; that all plant personnel "go through an

intense training session on the use of the pollution control

manual" (the Environmental Control Systems Operating Manual

devised for the plant by WAPORA];: that "[a] system of very close

checking of the bio-oxidation ponds for odors" be established to

ensure that "no noticeable odors from them get anywhere near the

property lines or the Alcolac building.“ These goals, Bregman

concluded, were never met.

Alcolac began production nevertheless some six months

later, and almost from the start the liguid incinerator and the

bio-oxidation psond systems were sources of complaint. The incin-

erator emitted vapors and hazes over the environs and the bio-

oxidation ponds emitted odors. Alcolac called on WAPORA to allay

these problems. Bregman assigned to David Boies, the engineer

who had designed the Alcolac slant, the liquid incinerator con-

cern, and to engineer Dr. Leroy Reid, an expert in the treatment

of toxic waste, the bio-oxidation ponds odor concern. Bcies and

Reid concluded the assignments and reported to 3regman.

Reid completed the first phase of the assignment in

July of 1978 and in a memorandum expressed concern that the

carbon filter system in the environmental control building was

used =o overload with the consequence that toxic wastes from the

monomer process were allowed to enter the bio-oxidation ponds. A

month later Reid resumed the investigation and found the bio-

Oxication ponds still toxic as well as odorous. Reid also

Giscovered on that second visit that the drain valves which lead

from the monomer building to the bioponds were not locked closed

as normal procedure intended. This allowed chemical spills in

the monomer building to flow directly into the waste pipes of the

environmental control building for discharge into the biopond

without any prior cleansing in the liquid incinerator. Dr. Reid

not only reported to Alcolac that the ponds were being contami-

nated with toxic wastes, but that the toxic chemicals lighter

than water could attach themselves to the foam created by the

aerators in the bioponds and be blown in the air or become vapor

- and so present a hazard to the environment. Dr. Reid also

recommended that an additional aerator be installed in the bio-

ponds to infuse the water with more oxygen, and so dispel the

odors. Reid also reported to WAPORA, by a later memorandum of

October 31, 1978, with copies to Anderson and Bouroff at Alcolac,

that the chemical data collected indicated that the biopond was

receiving loadings of over 18 times design conditions.

Reid continued the investigations into 1979. The

increments of chemical wastes from the increased production

outstripped the capacity of the bio-ponds to degrade the chemi-

cals so that a sludge accumulated at the bottom of the lagoons.

Ocers were emitted of the "rotten egg type, which were probably

from hydrogen sulfide." On Several occasions Reid experienced "a

burning type sensation to the odor coming off the lagoons" to the

membranes of the nose. His reports noted also that the acid

scrubbers in the surfactant building were not as effective as

expected so that soap flowed into the bio-oxidation ponds and put

an additional stress on a system already overburdened. Other

memoranda reported to Alcolac and plant manager Fischer that the

untrained, and not "capable of doing a proper job." A memorandum

to Anderson at Alcolac in June of 1979 reported other problems:

the rupture of a disk [a monomer reactor safety device] which

sprayed toxic chemicals into the air. That memorandum also

reported that a drain outside the environmental control building

discharged untreated chemicals into a ditch and from thence into

the atmosphere - among other numerous erratic environmental

practices noted as to Alcolac. Reid reported also that strainers

on the pumps in the monomer building clogged, so that the pits

overfilled with the consequence that the raw untreated chemical

waste flowed directly to the bio-oxidation ponds, still toxic.

Reid noted also on the occasion of another visit to the Alcolac

plant a spill of dodecylbenzene sulfonic acid at the surfactant

plant. He commented also that the environmental technician

[LeMaire] was untrained. He noted that the position was very

important "as any data he produces must be valid" and urged that

LeMaire be trained. Reid urged also that the employees be inm-

pressed with the requirement for good environmental control meas-

ures. He observed that the plant lacked a "Spill response

program" - a team trained and equipped to handle spills of corro-

sive and hazardous chemicals in order to prevent damage to per-

sonnel and the environment.

In August of 1979, the Reid memorandum cited evidence

oz chemical spills - which “probably violate either

r both Federal or State law." He commented, "“([bloth were seri-

or spills which could pollute either streams or

roundwater acquifers." That memorandum concluded with the

Summary: "There seems to be new problems developing at the plant

each time I visit," and urged management "to take a highly active

cle in enforcing the proper conduct of employees to reduce

dancer to the personnel health and to the environment." It

chemicals should not be toler-

udec: “Haphazard handling o

Reid submitted numerous recommendations to Anderson and

the other Alcolac officials on solutions to the bioponds pollu-

tion problems - with specifications, design calculations and cost

estimates - but every recommendation met resistance or delay in

implementation. In addition to the memoranda, Reid warned the

Alcolac officials that the environmental problems would exacer-

bate. The major concern, as he saw it, was that the chemical

waste from the increase in the production schedule "would over-

come [the improvement to the bioponds] we had planned before it

even got installed." The ultimate resistance to the recommended

solutions to the bioponds pollution problem was an economic

resistance "clear at the top" - Alcolac president Anderson. Reid

had the impression that Alcolac either did not have the money to

Spend or cid not want to spend the money.

Boies also pursued his assignment of June, 1978, to

investigate the liquid incinerator and also reported to Bregman.

Boles died in 1980, five years before the trial, so Bregman

related the results of that phase of the investigation. In the

course of the investigation in June of 1978, Boies paid a visit

to the woman who complained that the liquid incinerator caused

vapor and smoke to drift over her home, and Boies made apology.

Boies composed a detailed memorandum about that incident, Gave it

regman, and sent a copy to Alcolac. Anderson, irate that

Boles should have apologized, demanded that "Boies be pulled off

the project and [not] to be put on it anymore." Blinoff, the

founder of Alcolac and champion of "a zero discharge plant" had

Gied by then, and Anderson succeeded him as the dominant figure

in Alcolac. Thus, Bregman acceded to the Anderson demand, and

removed Boies from the Sedalia project.

Boies had written other memoranda concerning his inves-

tigation of the Sedalia project, but they were missing from the

WAPORA files. Bregman still retained a related document, however

- a typewritten draft of a proposed memorandum to Alcolac pre-

pared by Boies and submitted to Bregman, who inscribed his com-

ments. The memorandum in final form - circulated to Anderson and

other Alcolac officials - was also missing from the WAPORA files,

but Bregman reconstructed its content from the document at hand.

The memorandum was a catalog of “things that were remaining to be

done" to bring the pollution control systems to proper function.

One item commented: "No one person responsible for pollution

control." It meant, Bregman explained, that "Alcolac did not

have a trained competent person who looked at the pollution

control systems, made sure they operated right.” Another item

commented that the "sampling points on the vent absorber units"

were not yet installed, and hence "whether stuff was escaping

into the air or not and how much or what" could not be deter-

mined. Alcolac always responded "they were too busy running the

plant to do this." Another item commented that the major problem

as to water pollution control was that "a much higher organic

load than had been predicted” was emitted into the bio-oxidation

ponds. That is to say, the production of organic compounds at

Alcsclac exceeded the design level based upon the production

preciction provided by Dr. Bouroff. The result was that a much

higher organic load wound up in the oxidation ponds than allowed

or by the design. Another item commented that the Alcolac

employees were not using the record forms supplied by WAPORA to

monitor the bio-oxidation ponds.

Another "major basic problem" the Boies memorandum

mentioned was from the operation of the liquid incinerator, which

ed haze in the atmosphere. Bregman explained that the

local residents were restive about that condition of pollution,

and the newspaper reported that uneasiness. B3regman assured the

citizenry at a meeting that "these things were going to be

solved." That condition apparently came to the attention of the

Department of Natural Resources, and the Alcolac officials,

Anderson and plant manager Fischer, in the company of Bregman met

with the agency in Jefferson City. Bregman and the others dis-

closed to DNR the plans for air pollution control, and the agency

was satisfied. Anderson informed WAPORA shortly after that meet-

ing that Alcolac would "handle all future dealings with the State

of Missouri" without "involvement" of WAPORA. The eventual

consequence rather was to remove WAPORA as consultant altogether.

In the interim, however, Bregman - as requested by Alcolac - met

with yet another citizens' group, an environmental committee, to

allay the concerns of the Sedalia citizenry and to assure them

that the air pollution problems would be resolved. Bregman then

Still believed that the recommendations of the Boies memorandum,

as well as his own, would be implemented. Anderson refused them,

however, because: "[I]t cost too much money."

Alcolac discharged WAPORA from the Sedalia project in

December of 1979. A month or so before, Bregman dispatched a

last memorandum to Alcolac president Anderson and vice-presiden:

Bouroff, among others. A copy of that memorandum was also miss-

ing from the WAPORA files. Bregman, however, retained a sketch,

written in his personal hand, from which the formal memorandum

was composed. It was a summary of past Operational problems a

Sedalia, the present state of those problems, and recommended

utions. The memorandum noted once again, as before, the need

for a strong and experienced engineer for the maintenance of the

expensive and complex pollution control equipment, that the

employees be trained in odor detection and control, and that the

Stancard operating procedure delineated in the Environmental

rating Manual composed by Wapo for the

Sedalia plant be observed - all recommendations already made

Alcolac by WAPORA but not implemented. The memorandum also

informed Alcolac, once again, that the monomer plant was produc-

ing three times the chemical waste the design capacity of the

bio-oxidation ponds allowed. Bregman reported also that the

odors were caused by the "sloppy handling" of the chemicals used

in the monomer process and could pose a considerable toxic con-

trol problem if not handled correctly. It was communicated to

Alcolac, also, that a number of the chemicals used in the monomer

production had "significant air pollution potential” so that the

plant environmental control system needed to be flexible and

reliable. Among the chemicals specifically mentioned as environ-

mental hazards were allyl alcohol, dimethyl sulfate,

epichlorohydrin, ethyl acrylate, methyl methacrylate and

toluene sulfonic acid.

Bregman testified that Anderson refused to implement

the recommendations of the last memorandum, as he had the prede-

cessors, as too costly. Bregman deemed the environmental system

designed for Alcolac worthy of a national prize, and told Ander-

son that "if he would fix this up, we would have the best one

going" - but to no avail. In December of 1979, Alcolac president

Angerson removed WAPORA from the Sedalia project. Bregman cited -

as of that date of departure - the continued reluctance by Ander-

son to spend the funcs necessary for these essential pollution

controls: $150,000 to install hydrocarbon monitors: another

$299,099 or so for an aerator system to facilitate the oxidation

of the excess chemical wastes in the ponds due to unforeseen

reased production, and about $500,000 to $1,900,000 to redo

ra |

tne liguid incinerator. Bregman reiterated as the "single-most

important factor" to a proper system of environmental control "a

nighly qualified environmental engineer to make sure that the

ems work and to give the fellow the authority to make correc-

01)

“

tions when they don't work." It was a recommendation Anderson

EEE __ ee

"strongly opposed," because of the Salary entailed, and because

the "corrections" would involve "an Ongoing expense.”

Some two years later, after the commencement of suit

against Alcolac, Bregman heard from Anderson once again. As

Bregman related the incident, Anderson said that "there were some

kooks who filed a lawsuit" and he asked Bregman "to destroy the

WAPORA project file on the Sedalia project." Bregman refused the

request as “unethical, probably illegal and certainly unprofes-

Sional." Of the two files at WAPORA on the Sedalia project, one

disappeared altogether.

; Alcolac president Anderson was called by the plaintiffs

and was examined as an adverse witness. Anderson was a member of

the ad hoc committee appointed by Alcolac founder and Chairman,

Dr. Vsevolod Blinoff, and so was involved in the decisions on the

design and construction of the Sedalia plant - the environmental

control system, included. Anderson acknowledged that as early as

January of 1978, he was aware the Sedalia production process

involved many dangerous and highly toxic chemicals. He acknowl-

edged also the numerous WAPORA reports and recommendations,

written and spoken, during 1978 and 1979 [the first two years of

Sedalia operations] concerning the improvement of the environ-

mental control systems and that Alcolac was not willing to spend

money tS implement them all.

They did [according to Anderson] use the Environmental

Control Systems Operating Manual prepared by WAPORA at the

Sedalia facility.4 Alcolac did purchase one of the eleven

hydrocarbon systems recommended by WAPORA to monitor chemical

_— ee we we we we owe we we oe ee

There was some intimation in the Bregman testimony, also, that

Alcolac installed some sort of aeration system in the biopond,

Dut apparently not of a Gesign WAPORA considered effectual to

degrade the volume of additional toxic chemical waste from the

increased production.

emissions. That monitor did not function, however, and Alcolac

depended on periodic samples taken from the stacks and dispatched

to independent testers - "several times over a couple of years" -

in lieu of the analytic monitors WAPORA found essential to de-

tect, warn of and control the toxic emissions. The liquid incin-

erator had not functioned effectively from the outset of produc-

tion so that in May of 1980 [after the dismission of WAPORA]

Alcolac vice-president Bouroff was prompted to report to presi-

dent Anderson among the items of "Progress As Of May 1980":

Items 1 & 2: Our liquid incinerator has the

poorest performance ever seen. Most of the

time it is out of commission due to all kinds

of mechanical problems. It is an absolute

waste of time and money. We consider it a 100%

failure and the most costly operation. Also,

part of our environmental problems_were/are

caused by this piece of equipment.

The malfunction notwithstanding, Alcolac continued to use the

incinerator as the mode to dispose of the liquid waste. The

result was that the waste was only partially incinerated, if at

all, so that the residue was vented into the atmosphere still as

toxic, or even more so, than before. In 1981, the use of the

liguid incinerator was discontinued altogether. The hazardous

waste intended for disposal by that method was hauled away there-

Anderson recalled that during one of his periodic

sojourns at the Sedalia plant - in 1978 or 1979 = he had occasion

to visit Charlotte Phillips [an eventual plaintiff} at her home

north of the facility to discuss a complaint of odors. He never

Knew of any incidents of odors from Alcolac “going beyond the

property boundaries" and contested her testimony that on the

occasion of that visit the odors were s0 pronounced "that every-

one's eyes were watering and people were choking,” including

See APPENDIX F for the full text of the document

Anderson, himself. Nor had Anderson ever seen foam from the

bio-oxidation ponds “blow beyond the bounds of the Alcolac prop-

erty" except for a photograph in evidence which depicted such an

accumulation beyond the bournes of Alcolac. He conceded, how-

ever, that "[w]e have been cited by the DNR [Department of Natu-

ral Resources] for odors that have gone off of our property

before." The numerous complaints of odors from Alcolac made by

neighbors of the plant, he said, were personally investigated and

never corroborated. The complaints of odors, Anderson said, were

unfounded. Anderson conceded that he was advised that the bio-

ponds were regularly being overloaded, but on one occasion only,

and then by Dr. Reid. He acknowledged that Alcolac employee

Joseph LeMaire was the person Dr. Reid alluded to in his 1979

report as the environmental control technician totally untrained

and incompetent for such a position. Anderson was adamant,

however, despite even the testimony of LeMaire to the contrary,

that LeMaire functiones as a maintenance worker - not an environ-

mental control technician. Anderson acknowledged that Alcolac

officials had met with the DNR some ten times since 1978 concern-

ing the emission and odor problems at the Sedalia facility. He

Genied any overture to Bregman to destroy the WAPORA files conse-

gGuent to the initiation of suit by these plaintiffs.

Joseph LeMaire was employed at Alcolac between August of

1977 and January of 1984. His testimony as to his employment

sunction and the regularity of the plant operations was in essen-

tial contradiction to that given by Alcolac president Anderson.

His service with Alcolac, therefore, encompassed the entire period

of the WAPORA presence there - and beyond. LeMaire came to Alco-

lac at the age cf eighteen years as a maintenance worker and

roundskeeper. He had dropped out of school at the 10th grade,

but later gained the General Equivalency Diploma. That was the

138

extent of his formal education. In the summer of 1979, the em-

ployee in charge of the environmental control building was dis-

charged for drunkenness on the job, and [according to LeMaire]

without training or even the guidance of an operation manual,

LeMaire was placed in charge of environmental control. He was

accorded the title: "environmental control technician." LeMaire

described the process by which the environmental control building

devices were designed to function: the liquid waste stream from

the monomer plant [where the most toxic chemicals were used] was

conducted into a sump pit in the environmental building and from

there was filtered over charcoal Calgon units and the liquid, as

treated, was then discharged into biopond one.

LeMaire described episodes of repeated chemical spills

at the plant. Toxic spills were often "push[ed] down the drain

witn squeegees.” The valves which controlled the monomer drains

were kept open as a matter of course so that the spilled toxic

liguid flowed directly into the environmental control sumo pit and

was allowed to discharge into the biopond without completion of

harcoal decontamination process. Also, on occasion, the

—_

—

environmental control drains would become so overloaded that the

waste liguid backed up, and the waste was routed around the envi-

nmental control filtration system, still toxic, directly into

the biopond. On other occasions, the toxic liquid overflow was

Simply allowed to drain from the environmental control building to

utdoors, and from thence into Little Shaver Creek. LeMaire

d detect the odors of toluene and allyl methacrylate, among

other toxic compounds, from these "washdown waters" from the

monomer building. LeMaire also described occasional dispersions

of chemicals into the atmosphere from explosions in the monomer

plan= [a phenomenom noticed by the WAPORA report of Dr. Reid to

colac president Anderson]. The exposure to these toxic wastes

Ourned the eyes, irritated the throat and impaired the breathing.

LeMaire described the odors emitted by biopond one as of "rotten

eggs or a bad sewer system," or sometimes, "a sweet smell, or a

sour, bitter, smell," depending on which untreated chemical wastes

were in the pond.

The “washdown from the soap [surfactant] plant" also

collected in bio-oxidation pond one. Thus, when the chemical

wastes from the monomer building were released directly into the

pond uncleansed by filtration, they mixed in that toxic state with

the suds from the soap building. Those suds, LeMaire observed,

left the Alcolac premises "like a Snowstorm" whenever the wind

blew, and at times built the suds to a height of "close to 15, 20

utered in protec-

Lemaire and the other workers, acc

tive gear, attempted to control these occurrences with sprays or

other such substances.

LeMaire recounted that during his service at the Alcolac

plant, the Department of Natural Resources made periodic inspec-

tions. Alcolac received advance notice of the prospective inspec-

tions and "cleanup parties" were held to prepare the plant for the

inspectors. The agency discontinued the inspections when the

fis commenced these lawsuits, and then "the cleanup parties

Stopped." LeMaire was terminated from employment in January of

1984 shortly after he suggested to Alcolac president Anderson and

vice-president Bouroff that the Missouri Department of Conserva-

tion be summoned to investigate the death of numerous fish in a

te)

pond which adjoined the plant. Anderson did not recall the epi-

sode, although he acknowledged LeMaire was fired. It was the

installation of a twenty-year-old with no training [LeMaire] as

environmental control technician which prompted Reid to comment in

a WAPORA memorandum to Alcolac that the appointment "made a joke

of [the WAPORA] recommendations."

Paul Faulconer worked at the Alcolac plant and con-

firmed, and enlarged on, the operational malfunctions described by

LeMaire. He worked there for six months from April of 1979, and

so his service was during the WAPORA presence at the plant. Faul-

coner was not trained for work at a chemical plant when employed,

and received no training prior to commencement of work. His func-

tion was that of chemical operator in the surfactant plant. Faul-

coner was assigned one time to the monomer plant with a coworker.

There was a spill while he was there from the reactor of about a

guart of allyl alcohol. The almost immediate effect was to swell

the eyes shut. The maintenance personnel washed down the spill

accoutered in self-contained respiratory units. In the process,

they opened the doors to vent the allyl alcohol vapors into the

atmosphere. Faulconer, some ten feet away outside the building,

could feel the effect of the allyl alcohol vapors on his sinuses

and eyes.

The operations at the soap plant were plagued by contin-

reakdowns caused by lack of maintenance: overhead lines

ruptured, pumps failed, and other malfunctions resulted. The

toxic vapors released from the ruptures were simply vented into

the atmosphere. When the sulphur burner in the soap plant broke

Gown, so that sulphur dioxide fumes filled the building, the

employees were instructed to wait until after dark, then open the

coors and release the fumes into the atmosphere. At those times,

the fumes became so thick that employees in the soap building had

tO wear respirators. The manufacture of the soap-based products

in the surfactant plant involved sulphur and its compounds. Waste

srom that process included vapors of sulphuric acid, sulphur

trioxide, and other chemical residues. It was a function of the

ubbers to cleanse the residues from the wastes before they

| od

“

were emitted, nontoxic and neutral, into the atmosphere through

the stack. When the acid scrubbers malfunctioned, but production

ee ee

continued nevertheless [as were the instructions of management],

the vapors -still contaminated - and acid mist were emitted from

the stack in the form of a plume, and sometimes as soap bubbles.

The acid scrubbers malfunctioned 70% of the time. The smell from

the plume was "very foul." When that residue descended, the grass

turned brown, and irritated the skin it touched.

There were also repeated chemical spills. They occurred

regularly, about once a week, usually at the start-up and shut-

down phases of the production process. If the spill was in the

plant, it was flushed down the drain and discharged into biopond

one. The consequence was "a big pile of soap bubbles floating

across the road" mixed with whatever toxic chemicals were in the

pond. If the spill was outside the plant, as often occurred when

trucks loaded or unloaded the chemicals, the spill was merely

covered over with dirt. On one such occasion, some two to three

thousand pounds of duodubonicsulfonic acid were released. Other

outside spills resulted from the overfill of outside chemical

storage tanks of multi-ton capacity. Another source of outside

spills was from the storage of the liquid waste products. That

(presumably because the liquid incinerator continued to

malfunction] was placed in several thousands of drums outside the

buildings for transport and disposal. Some of the drums leaked so

that the contents filtered into Shaver Creek. Others would be

smashec py the semi-trailers, and the contents laid open. Other

Grums exploded in the August sun and spewed the contents.

Faulconer described incidents when trucks came to be

loaded to transport the surfactant products, but were refused by

che employees because remnants of hazardous chemicals from the

prior haul remained in the vans. The truckers simply drove a

Short distance off the premises, drained off the toxic matter,

and returned for loads. It was a practice, Faulconer said, known

by Alcolac and tolerated.

There was a logbook used to communicate between the

production shifts. It contained instructions by production

manager Gibbs as to the chemicals to be produced and the quan-

tity. It was also used to report spills. Faulconer was in-

structed by Gibbs not to record a spill in the logbook until it

was discussed with management first. He testified that only

"ten, maybe twenty percent” of the spills he observed at the soap

plant were recorded in the log. The spills usually recorded were

the "non-hazardous type spills ... five gallons of this, ten

gallons of that." Those spills considered hazardous, Faulconer

testified, were never noted in that log, or anywhere else, during

his employment at Alcolac..

Faulconer confirmed the LeMaire testimony that Alcolac

‘somehow got two or three days advance warning of Missouri Depart-

ment of Natural Resources inspections, and that advisement was

fransmitted to the employees by production manager Gibbs. Accord-

ing to Falconer, the Alcolac management instructed Falconer and

the others to "keep your mouth shut, don't volunteer any informa-

tion." Falconer was discharged - he contended - two weeks after

he contacted the president of the union at the Alcolac plant in

Saltimore [the Sedalia plant was nonunion] for advice about

Detter maintenance and safety procedures at Sedalia. He took

that initiative, Falconer testified, only after he had approached

Gibbs about better plant safety and was told "to keep-[his] mouth

mie "

tills we

Alcolac dismissed WAPORA from the Sedalia plant project

in December of 13979. The urgent WAPORA recommendations - for a

ree

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~~ — Det amae

trained environmental engineer, employee training in pollution

control, a restored liquid incinerator, the installation of

eleven hydrocarbon systems to monitor emissions, and an aerator

system sufficient to oxidate the increased influx of chemical

waste into the bioponds - all remained unfulfilled.

Complaints by residents in the environs of Alcolac

[some of them eventual plaintiffs, and others not] of odors,

suds, fumes and bodily ailments from those and other emissions

were made to Alcolac, to public officials, and then to the Mis-

souri Department of Natural Resources [DNR] almost from the

outset of operations. The DNR was drawn into contact with the

Alcolac facility in Sedalia by a complaint of odors by Gwendolyn

Lawrence, a nearby resident and eventual plaintiff. The response

to that first complaint was by Ann Gessley, environmental spe-

cialist with the Division of Environmental Quality of the DNR in

Jefferson City, Missouri. She arrived in Sedalia a week later +o

interview Ms. Lawrence - in August of 1978. The investigator on

that occasion detected "a slight odor," and then proceeded to

measure the odors around the circumference of the plant by means

of a scentometer. That device allows a tester to measure the

concentration of an odor by inhale ions of comparative volumes of

ocor-free air [freshened by the carbon filter of the scentometer]

and odorous [unfiltered] air. A dilution ratio of 7 to 1 between

the filtered and ambient air constitutes an "excessive emission"

lan

according to the standards of the federal Clean Air Act enforce

by the DNR.© Ms. Gessley then entered Alcolac, informed then

plant manager Fischer of the complaint, and was conducted through

the facility. She had occasion to inspect the plant several

times thereafter but acknowledged that she was qualified to

enforce odor regulations, but not as to the "goings on of a

chemical plant.” Ms. Gessley testified that she never undertook

to determine the source of the odors on the occasion of that

ficst complaint, but her written report suggests that "the waste

lagoon [biopond] could be the source of the odors." She doubted,

however, that the biopond was the cause of the burning sensations

the complaint of Ms. Lawrence described.

The recurrent complaints of odors and bodily discom-

forts from Alcolac emissions entailed frequent returns to Sedalia

by Ms. Gessley and other DNR specialists. They conducted re-

peated surveillances around the Alcolac perimeter and often

detected odors, but no violations - that is, odors diluted in a

ratio of 7 to l by the scentometer test. Ms. Gressley acknowl-

edged that the elapse of the two hours or so between the receipt

ne complaint in Jefferson City and the arrival of DNR person-

nel in Sedalia "was why we couldn't get a violation." That is to

Say, whatever odors may have been emitted at the time of the

complaint were often dissipated by the time an official test was

o allay that conundrum that the DNR empowered

Sedalia officials - first the Director of Civilian Defense of

county and then the Sedalia Police Department - to respond

The full evidence explains that when a scentometer inspection

detected an odor in the dilution ratio of 7 to l or greater -

measured at that concentration twice within the hour and fifteen

minutes apart - an "excess emission" was established. A notice

of "excess emission" was thereupon served upon the source [here,

J. The source was then allowed fifteen days to file a

up/snhut=-down or malfunction plea" - (apparently operation-

pisodes which normally resulted in some period of excessive

ission]. If the plea was rejected by the DNR, the "notice of

cess emissions" was raised to the status of a formal "viola-

ooo

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SS SS Se ore ee ELT MI

to complaints and to investigate by means of the scentometer. In

a memorandum concerning a successive "walk-through" inspection of

the Alcolac plant in October of 1978, Gessley did note "foaming

problems" in Biopond No. 1, and noted also that the management

"plans to reroute discharge [of] sulfactant plant to second and

third cells [bioponds]." Gessley concluded her service with the

DNR, and hence responsibility for the complaints of the Alcolac

operation, at the close of 1979.

The response to the citizen complaints about the Alco-

lac operation, and the surveillances, by the DNR continued

through Charles Crawford, a section chief of the air pollution

control program, and others of his inspection group. Crawford

testified that his division responded to over fifty complaints

about Alcolac during his service in that function throughout 1979

and 1980. These responses then still Originated from the Jeffer-

son City office of the DNR, and Crawford participated in about

fifteen of them. They comprised of surveillances and scentometer

measurements. Crawford explained that, as to citizen complaints,

because of the lag time between the receipt of the complaints at

Sedalia and the arrival of the DNR in response, DNR “pretty much

drew a blank on really getting anything to constitute a viola-

tion." He acknowledged on cross-examination, however, that in an

official letter to The Sedalia Democrat, he commented that in the

two years which preceded the abatement agreement between Alcolac

and the DNR fon May 30, 1980] "we found several violations of the

State odor regulation at Alcolac." There were also citizen

complaints of foam as well as of physical ailments from the

Alcolac operations.

Richard Nikkila, chief of the enforcement section of

the DNR in 1979, and then in 1980 staff director for the air

pollution control procram of the agency, first made contact with

Alcolac during a "walk-through" inspection of the plant with Ms.

Gessley. Such “walk-through” inspections were not to determine

compliance, but simply “what is in operation and what [emission]

controls are in place.” In1979 his office inaugurated the

policy of increased surveillance of the plant for excessive

odors, which Ms. Gessley and others then implemented. There were

occasions when the scentometer measured excessive emissions, and

Nikilla recalled that about four notices for such excesses issued

to Alcolac from the DNR office from such surveillances. A series

of notices of excessive emissions issued to Alcolac on citizens

complaints as well.

On March 7, 1980, Nikkila served upon Alcolac a notice

of excessive emissions. That investigation was prompted by the

complaint of Ms. Lawrence in Sedalia to the DNR in Jefferson City

of odors from the Alcolac plant. Nikkila and Hastings, another

DNR official, arrived from Jefferson City an hour and a half

later. The odors were palpable to them even without the use of a

scentom-

eter, and both of them detected successive measurements at the 7

1 dilution ratio. They found the source: an exposed portion

of the waste stream from the monomer building.

On March 14, 1980, an investigation of another com-

plaint cf odors from Alcolae resulted in another “notice of

excess emissions." Alcolac was instructed to “determine the

cause of the odor" and to achieve compliance by March 24, 1980.

On April 30, 1980, Nikkila received two complaints of dark smoke

and odors from the Alcolac surfactant plant. A nearby resident

and former plaintiff now deceased], Ms. Landon, complained that P

she had been overcome by odors some days before and became uncon- |

scious. Mr. Landon [also a plaintiff] complained that the emis-

ions aggravated his emphysema. Nikkila came to Sedalia, took

scentometer readings around the Alcolac perimeter and recorded

measurements of 7 to 1 = “excess emissions."

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On April 30, 1980, as a result of the investigation of

a citizen complaint of dark smoke and odors from the Alcolac

plant, Nikkila issued a notice of excess emissions. Nikkila gave

notice of excess emissions to the laboratory technician, in the

absence of plant manager Sutton. Alcolac interposed a "malfunc-

tion plea" against the April 30 notice of excess emissions which

was rejected by the DNR after investigation. The official re-

sponse by Nikkila for the DNR to plant manager Sutton for Alcolac

on May 22, 1980 concluded.

Since this is the thire notice of excess emis-

Sions that you have received and the second

which has been Upgraded to a notice of viola-

tion, we intend to request issuance of an

abatement order by the Director, Department of

Natural Resources.

Sutton, in turn, issued a memorandum on that very date,

May 22, 1980, to all Alcolac employees on the Subject: "Odor ang

Pollution Control."

During the past three months we have been cited

three times by the Air Pollution Enforcement

Division of the Department of Natural Resources

for excessive odor emissions. These citations

are serious and will Probably result in further

action from the DNR.’

The memorandum then gave the causes of ‘the citations and com-

Plaints as "human error" in the operations which "could have been

preventec had proper Procedures been followed." It cautioned

that "further operating errors or causes of odors will be very

serious Cand] could result in additional Citations and ultimately

the shut down of the plant."

These episodes Prompted the DNR to issue an abatement

order which directed Alcolac to cease the emission of odors in

excess of the restriction imposed by its requlation. That order

P @ as

Os abatement was Superseded by an abatement agreement concluded

"See APPENDIX G and # for the full text of the memorandum of the

Alcolac plant manager Sutton to the employees.

between the DNR and Alcolac on May 30,1980. Its purpose [accord-

ing to Nikkila] was to correct what the surveillances and inves-

tigations determined were the “significant sources of odor."

Alcolac undertook, by its terms, to implement nine projects and

procedures:

l. To install a single automatically timed hydro-

carbon monitor to sample the ®missions from

each stack of the vapor incinerator and carbon

adsorption system in the monomer building,

equipped with a manual noise alarm when the

limit for the hydrocarbon concentration is

reached. The baseline data for the hydrocar-

bon concentration cut off limits was to be

established by Alcolac and submitted to DNR

for approval by December 1, 1980, and the

alarm was to be installed thereafter by Janu-

ary 12, 1981.

2. To draft a written plan for the handling and

control of the excess hydrocarbon concentra-

tion in the vapor incinerator and carbon

adsorption system in the monomer building for

DNR preliminary approval by November 10, 1980,

and for final approval by December 1, 1980.

3. To implement by February 1, 1981 a system to deter-

mine on a one time basis the nature and concentra-

tions of the emissions from the stacks of the vapor

incinerator and carbon adsorption system for each

product manufactured by Alcolac in the monomer

building.

4. To install and operate an alkaline scrubber to

remove 99.5% of the acrylates in the gaseous waste

streams from the monomer building reactors and

storage tanks. Alcolac undertook to report a

completed and efficient operation of the installa-

tion to the DNR by June 30, 1981.

5. To install and operate an alkaline scrubber to re-

move 99.5% of the acrylates from the liquid waste

streams from the hot wells in the vacuum system of

the reactors in the monomer building. Alcolac un-

dertook to report a completed and efficient opera-

tion of the installation to the DNR by July 15,

1981.

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6. To develop and submit to the DNR by November 7,

1980 a plan and procedure for the routine analysis

and changing of activated carbon in all carbon

adsorption units so that the carbon is replaced

before breakthrough of gaseous wastes.

7. To test, by November 24, 1980 and semi-annually

thereafter, for emissions of sulfur dioxide and

sulfur trioxide acid mist from the surfactant plant

stack in accordance with the method approved by

agency regulation. :

8. To store - immediately - all drummed waste materi-

als in either the monomer building, environmental

control building or the warehouse.

9. To develop for DNR approval by November 15, 1980, a

plan for the training of employees as to the con-

trol of odorous emissions from potential sources at

the facility.

The abatement agreement did not prescribe any projects

or procedures to further control emissions of odorous matter from

the bioponds. Nikkila gave as reasons that the additional infu-

-sions of dilution water into the ponds and the installation of a

system of aeration led the DNR to conclude that the bioponds

"were no longer anaerobic, [slo in our view, that was not an

issue to take up with Alcolac.”

It is the sense of the Nikkila testimony that the terms

of the abatement agreement were met, with exceptions. Project 3,

the system to determine on a one time basis the nature and con-

centrations of the emissions from the monomer building stacks,

was never completed. Project 1, the hydrocarbon monitor, was

installed but reported inoperative by Alcolac on December 8,

1981, and the manual reset alarm for that system was not actually

installed until May 22, 1984. Project 8 called for the immediate

storage of all drummed waste into one eof the designated buildings

which were designed to collect odors through the system of acti-

vated carbon. Alcolac, however, had adopted a plan to dispose of

the physical inventory of 3000 drums at the rate of 500 per week,

so that the removals would not be complete until July of 1980. A

number of those containers leaked ethyl acrylate and other toxic

chemicals so that they were transferred to sound drums. Nikkila

could not say how Project 8 was ultimately performed.

The abatement agreement notwithstanding, Nikkila ac-

knowledged, the problem of odorous emissions was not resolved.

The chemical spills continued also. The citizen complaints of

odors from the Alcolac operation, the official detection of

excessive emissions, and the citation for violations persisted.

On August 15, 1980, a DNR investigation in response to a citizen

complaint resulted in a notice of excess emissions to Alcolac.

The Alcolac plea of malfunction was denied, and the emissions

officially attributed to Alcolac negligence. In year 1981, the

DNR files recorded notices of excessive emissions from a variety

of operational incidents: foam off the bioponds carried beyond

the Alcolac property; chemical spills, and from the malfunction

of the carbon bed [and so officially excused]. The complaints of

intrusive foam became so recurrent that then plant manager Sutton

refused to accept any further notices of excess emissions from

she DNR officials. Alcolac called Nikkila on May 14, 1981 to

f allyl glycidil ether residue outside the mono-

ue)

—)

mer building to account for odors. An official inspection of the

Alcolac plant in 1983 discovered off-premises odors in concentra-

tions in excess of the 31 to 1 ratio. The complaints and offi-

cial notices of excess emissions to Alcolac continued throughout

1983 and into 1985 -- a short time before the trial began.

In mid-1983, in order to improve the complaint response

—

ime, the DNR engaged the local government of Sedalia. Captain

[then Sergeant] Rice of the police department performed that

function until June of 1985. Rice was instructed in the use of

=ne scentometer, made response to local complaints of odors, and

maintained a log of those events. In the course of that two-year

Guty, Rice compiled 23 memoranda of complaint investigations made

oy citizens in the environs of odors and resultant physical

Jiscomforts. These investigations, conducted night or day as the

complaints were received, all led to the Alcolac operations. The

odors were palpable to Rice, variously, as "similar to rotten

eggs," “sewer odor," similar to "a hair permanent solution," and

"foul odor of natural gas" - among other descriptions. The

sources of these odors - except for a chemical spill - were the

sleolac bioponds, and most frequently, biopond one. The scento-

meter measured the odors on several occasions at the ratio of 3]

a nd Wo tials Droop ashy obs Me OP

AED 8 wt»

Co 0 Ego 6

to 1, and on one occasion, at the ratio of 171 to 1. On these

occasions, the Alcolac supervisory personnel attributed the odors

to a lack of fresh water in the ponds, the hurried release of

soap byproducts, and inability to induce a breakdown of the

residue from the production. Of the 23 complaints Rice investi-

gated from June of 1983 to June of 1985, 14 were "excess emis-

sions" as defined by regulation, and hence equivalent to

violations unless excused.

Alcolac plant chemist Richardson explained that the

natural system employed to Gegrade the compounds in the bioponds

ts a “sulphur-type of odor." The odors are more recurrent in

ly springtime when an "inversion occurs" - when the bacte-

ria become more active and stir from the bottom of the pond to

the top. It is a phenomenon which occurs about ten times a year,

and sometimes the resultant foam is blown beyond the Alcolac

remises. The chemist acknowledged that the ponds are not tested

Sor toxic chemicals. [Nor, as Nikkila testified, was such a test

ever undertaken by the DNR.]

Joseph Aid, a plant manager at Alcolac, acknowledged

that the odors Captain Rice [investigator under DNR auspices]

detected in June of 1983 in response to complaints were "[vlery

Gefinitely from the bioponds." He attributed them, as well as

the foam - as did chemist Richardson - to the soap component of

the wastewater and to the natural process of bio-oxidation em-

ployed to degrade that waste. He acknowledged at the trial [in

late 1985]: "“({Tjhere are still some odor and some foam problems,

yes."

pe |

July of 1980, some months after WAPORA was dis-

rom the Sedalia project in December of 1979, and within

weeks of the execution of the abatement agreement on May 30,

1980, Alcolac employed Mark Blowers as environmental engineer

the first to occupy that position. Blowers, a recent graduate

school environmental engineering laureate, was then 26 years of

age and Alcolac was his first employment as environmental engi-

neer in a chemical plant. He remained with Alcolac for two years

- until June of 1982. His resonsibility centered around the

environmental control building. Blowers replaced an environment-

al control technician, McCutcheon - a college graduate, but

without other qualification in environmental control matters. His

uty was also "to keep an eye on the environmental control build-

ing and make sure everything was going okay down there." Blowers

acknowledged that Joseph LeMaire, the maintenance worker,: had

served as environmental control technician, but then was returned

to maintenance work.

It befell Blowers to serve as plant liaison with gov-

agencies, such as tne DNR and the EPA, and hence to

ement the abatement agreement concluded between Alcolac and

the DNR just the month before. To that end, Blowers undertook to

ll control and clean-up. He also

ndertook to establish procedures for the treatment and storage

of hazardous waste so as to comply with the provisions of the

t. Blowers was also the afficial designated to respond

aints of Alcolac emissions. In those roles,

lowers was in frequent communication with Nikkila and other

officials of the DNR. It had been the procedure to maintain the

record of spills in the daily reports of the foreman - entries

interspersed with other notations on plant operations. Blowers

collated these spill notations from the daily reports into a log

"strictly for spills” and maintained that system from December of

1980 through December of 1981. Thereafter - for no explained

reason - the log was discontinued.

The log reported 111 spills during that year of Decem-

ber, 1980 to December, 1981. The quantity of the spills, as

recorded in the log, ranged from one quart to 2900 gallons of the

particular compound. Blowers surmised that during the two years

he served with Alcolac at Sedalia, "an environmental concern-type

spill, major spill, would [occur] once a month." The small

chemical spills in the environmental control building were rinsed

down the Grain into the sump pit, and small spills in the monomer

building were treated with 3M absorbent cloth. That special

cloth functiomed to absorb the organic matter from the surface of

the waste, and the cloth was then disposed of in drums and dis-

carded as solid waste. Blowers acknowledged that there were

occasions when the employees neglected these clean-up procedure

and hence the carbon filter systems were bypassed, so that the

pills went directly into biopond one - still untreated and toxic.

than the pumps could accommodate. in such _

event, the environmental control building operated "in a bypass

mode" and diverted the chemical waste into the biopond without

filtration. Leaky drums were also a source of chemical spills.

and stacked on the grounds, were sometimes eaten through so that

the liguid exuded. They were also struck by trucks and severely

damaged so as also to become "leakers."

Another objective of the abatement agreement Blowers

was engaged to implement was that Alcolac install a system of

alkaline scrubbers to remove the acrylates from the liquid as

well as gaseous waste streams from the monomer reactors. The

f the scrubbers was to expunge those toxic residues, as

ourpose oO

well as their odors, from vapors and liquids before they were

vented to the carbon bed and fume incinerator. Alcolac had

ted without such scrubbers for the two years which anteceded

©)

oY)

(

the abatement agreement. They were installed during his tenure

as environmental control engineer, and once in operation - as

Blowers described it - they "worked fairly well most of the

time."~

Another objective of the abatement agreement - the

be-

| od

insta ation of the hydrocarbon monitor ont

2 ~ = q - - te |

and arbon bed stacks of the monomer building - was also under-

- ~~ A . A 7 | mn ~ } } =

raxKxe 2Uring ALS tenure at AaALcoiac. The monitor oroke down

Baer s < : -< .

Secasionally, but even when the device operated (_|Blowers said),

" ~ 7 re | . 2 o : .

there was a major prodlem Lin) trying to cetermine a meaning to

eho Jara Tr Rer} eal ver rhe hydrocarbon analyzer " The monitor

— — wh eke Ge ~~ + — st ae ae ‘ww Ah we 44 sy Me wwe s VW ‘ > id -~ *« ~s ee

— : P| os — - - ~ + | 7 ee

2asured carbon atoms, rather than speciztic molecules. Thus,

- ~ | ~ ~ — ~ _— = + - - & =

altnoug ene monitor could identify the carbon content of a2n

n~ a ~~ ~~ esa 5 | _ -s 5 |

organic emission, 1t could not identify the particular compound

~ | in — ~ _ 3 : + , j ~ - ‘

emitted For instance: the detection of four carpdon atoms i1n

- ho ~ ce ~F 7 a | as + = + M 4 < 7 —- =

cne em1ssilo >ould signify tne presence of epicnloronyarin or any

sther ompound of similar molecular structure, but could not

~— ~~ ne + & + _*s = ° - | a" «@ q tr . -

1denticz WNn1c one. it was a delineated onojective g3j) of the

J L

i —— <a ee ee oe ae ee oe ee oe ow oe

- a= < — - £ ~ a9 | | e9 - bh, } sm

sne Surcactant factory as also equipped with scruopers =- acid

c- Kho A 3 a 7 £ ‘

Scrusoers - designed to remove chemicals from the vapor wastes

7 a } . 2 } - 5 Wn :

oeltore tney were emitted through tne suriactant stack. There was

= A ~ ro + | ~ Le, } £ a = 5 30 . ~ } -

2 sence that tne acid scrubbers functioned only % of the time,

’ ~~ ~h ~~ ~ ; A | ’ - _ = ~ I ~ )

J1E cne consequence that odors and substances emitted into the

a="maecanh mn) sA i. 9 AS < }

azmosonere. sne acid scrubdbpers were not a subject of the

asatement aqreement.

ree

J ad

il ie

agreemen

vary l

/ &

}

reactor and pipeline vent.

the pressure in the reactor

ruptures and releases the ex

the early

the pipeline. In

It is the theory of design that when

becomes excessive, the cartridge

cess gas into the atmosphere through

198l, a

morning of September 25,

rupture disk blew out, but instead of gas vented into the atmos-

phere through the pipe, the explosion [as Blowers reported the

incident to the DNR], "took the pipe with it and also damaged

[the] building." The report identified the chemical component in

the reactor at the time of the incident as diallyl maleate and

described that compound as "a mild eye irritant ... toxic only

through ingestion.” Blowers continued to reassure the DNR that

there was "no reason to expect toxic effect" from the spewed

debris. The city officials evacuated the neighbors in the path

of the wind direction and the Sedalia Fire Department was called

to the site.

The investigation established that the rupture disk

olowout not only "took pipe with it" - as described by the Alco-

lac report - but also a portion of the monomer plant roof as

well. Yor was the debris from the explosion confined to the

A.colac oremises, but rather was strewn to the north and south

Onto private property. A number of the firefighters who re-

sponded to the call reported skin irritation, and another fell

Sick.’ The diallyl maleate in production at the time of the

explosion, Alcolac disclosed, was being made from allyl alcohol

and maleic anhydride. Blowers acknowledged that allyl alcohol

was toxic and could cause severe irritation to the body and if

aosorbed through the skin, could cause injury or death. The

Symptoms cisplayed by the firemen, the DNR investigation estab-

lished, "matched the toxicological information given by the

(treating] doctor."

At the time of the explosion of September 25, 1981

Alcolac was without a plant manager. Sutton was gone and Aid,

his successor, had not yet arrived. Aid came to Alcolac on

October 19, 1981 - a month after the explosion. This suit

against Alcolac had been commenced by then and pended. Among his

first initiatives, Aid addressed a memorandum to the supervisors

and lead operators of the Sedalia operation concerning the re-

porting of spills:

I want to emphasize the importance of reporting

all spills at the time they occur. Our liquid

waste treatment system only has limited flexi-

bility, and slugs of material create serious

problems. .. . If a spill occurs, you must be

made aware of it by your operators and a report

must be made.

Notwithstanding the hortation of that official memorandum, it was

the testimony of lead operator Buckner that spills occurred in

the monomer building virtually every day, many of them un-

reported. The workers found it more convenient to "wash it down

than fill out the paperwork." The clean-up procedures were also

Giscouraged as too costly. The prescribed method for the dis-

posal of most-spills was absorption by organic [3M] cloth - but

lainled] it was too expensive and too costly and

Supervisors comp

it was just kind of pushed over." It became the practice

rather, to wash the spills into the drain to the environmental

)

l1 building. That occasionally caused the environmental

control building sumps to overflow with the consequence that the

spills liquid was coursed around the filtration system and, s

toxic, was pumped directly into biopond one.

Buckner came to Alcolac in September of 1980 and re-

mained there for three years - until September of 1983. Thus,

uch of his tenure coincided with that of environmental control

engineer Blowers. Buckner worked exclusively in the monomer

building, where the toxic chemicals were used in production.

included epichlorohydrin, allyl alcohol, methylene chloride,

dimethyl sulfate and methyl chloride. He was given no formal

training in the use of chemicals, but learned as he went.

[Epichlorohydrin, he learned, had no odor and is invisible. “It

is just there and it burns you."] Buckner - as did Blowers -

confirmed that the foam in biopond one often reached a height of

fifteen feet. Buckner - in contradiction of Blowers - related ten

to twelve as the number of rupture disk blowout incidents in the

monomer building during his employment there. It was also the

practice, Buckner testified, to complete the run of a "batch" of

chemicals before the break of daylight so that the toxic vapors

generated from that production process could be vented during the

dark "so nobody could see it.”

There was the testimony of another chemical operator at

the monomer plant - called as a witness by Alcolac - Charles

Eendgerson, who had been employed continuously since production

began at Sedalia. He testified to occasional spills in the mono-

mer building - and described a "spill" as "something that would

take manpower and maybe, you know, two or three hours to rectify."

Anything less, he considered a "leak." A leak occurred two or

three times a week, and was absorbed by 3M paper or simpiy washed

into the drain. A spill occurred very infrequently - two or three

times during his eight-year tenure. They occurred outside the

Duilding, and were promptly washed down into the drain connected

to the environmental control building. Henderson could not esti-

mate, however, the number of toxic spills of lesser magnitude than

those which required several persons to “get it cleaned up rap-

idly." The witness considered the 111 spills reported in the 1981

log maintained by Blowers sounded "awfully high but ... possible."

He acknowledged that during those eight years of employment at

Alcolac, he had never been shown the environmental control systems

operating manus) prepared for the Sedalia plant by WAPORA. de had

responded to counsel that he suffered from no Alcolac-related

health problems, but acknowledged a recent medical examination

report which disclosed complaints of numbness or tingling of the

hands and feet. The witness conceded an interest in the outcome

of the suit in which he gave testimony: "It means my job if they

[Alcolac] lose."

There was other testimony - through Alcolac witnesses

-as to the operation and maintenance of the environmental controls

at the Sedalia plant. That evidence was interstitial of the

proofs already described and undertook to confirm the defense

theme that the internal environmental control procedures were

methodically observed and were effective to meet official stan-

dards. The responses to cross-examination raised some inferences

of contradiction. This spate of testimony, for the most part,

related to fragments of the span during which Alcolac operated.

Richardson was plant chemist at the Sedalia Alcolac for

five years [from 1980]. He had worked for the Alcolac corporation

for twenty years altogether, and suffered no significant health

problem as a result of that employment. He worked with monomers

in the laboratory, in safety garb. It was his testimony that the

ocors perceptible in the plant - "Sulphur-type" - were not from

the chemicals, but from the bioponds, and were the natural inc:i-

Gent of the biodegradation process. The foam on the ponds was a

product of the soap plant, and [presumably] not of toxic chemi-

cals. Cross-examination elicited that neither Richardson as plant

chemist nor any other employee ever sampled the ponds for toxic

chemicals during his stint with Alcolac. He acknowledged that

laboratory tests in 1984 disclosed that he had developed a physi-

cal condition of abnormal globulins, and that in 1985 abnormal

hemoglobin was detected. Richardson conceded "an interest in the

outcome of this lawsuit to the extent that [he] would like to see

Alcolac win the case."

Lloyd Goode was the environmental control Operator

during virtually the entire span of the Alcolac Operation in

Sedalia. His employment progressed from maintenance, to the

surfactant plant, to environmental control building as operator.

This progression of duty was without any training. It was his

function to run tests and otherwise "take care of the bio-oxida-

tion ponds." He testified that there were fish in the ponds and

other animal life frequented them. He acknowledged on cross-

examination that the tests he conducted for the ponds did not

include any for toxic chemicals. He, too, admitted an interest

that Alcolac win the litigation.

James Wells, a DNR supervisor, performed a hazardous

waste management compliance and complaint inspection. Wells

testified to an inspection of the Missouri Pacific Railroad in-

Stallation located somewhat to the south and west of Alcolac. The

inspection, conducted on May 31, 1985, was to determine compliance

with federal and state hazardous waste management laws and regula-

tions. Missouri Pacific: was registered with the federal EPA as a

—_

us Waste generator, but not with the state DNR. The in-

of such wastes without registration with the state DNR. Wells

acknowledged that the DNR had received no complaint of any Mis-

Sourl Pacific activity, and further, that the tests conducted on

“nose premises had not yet Seen reported. Wells also had occasion

[Oo be on the Alcolac premises - both for routine hazardous waste

management inspections to determine compliance with the newly

enacted federal Resource Conservation and Recovery Act as wéil as

in response to citizen complaints. The inspections for RCRA

compliance were confined to the management and storage of toxic

wastes, and did not relate to the condition of the bioponds or

emissions from the production process. Wells conducted three suc

Te ate all en aN th ees ot

inspections at Alcolac, between June of 1981 and June of 1985.

Each of the inspections noted some unsatisfactory feature - among

them, the lack of documentation that "personnel training [was]

conducted annually" and the Storage of corrosive waste in damaged

containers. The inspections, nevertheless, found Alcolac in

substantial compliance with the RCRA. Wells also dealt with air

pollution control at the DNR and responded to six citizens com-

plaints about air pollution - odors and foam - from the Alcolac

Operations.

Raymond was another DNR official - the chief of techni-

cal support of the air pollution control program. It was the

function of the technical support group to collect information ana

Surveys from Missouri plants which generate air contaminants and,

on the basis of the information furnished by the company, to

alculate an "emission inventory" for that particular plant.

On the basis of the information furnished by the respective compa-

nies, DNR calculated that for year 1983 Alcolac generated two

of emissions of total hydrocarbons compared with twenty-nine tons

of emissions of such compounds generated by the Missouri Pacific

Railroad yards nearby. The Saliency of that evidence, as the

inguiry itself suggests, was to demonstrate the "efficiency o

10)

the Alcolac] control devices." The function of the inventory,

the witness repeated with emphasis, was not to "evaluate compa-

nies," but to develop a "monitoring network [in] major areas o

high concentration of pollutants." That National data base, under

the aegis of the federal Environment Protection Agency, depends

altogether upon what information the particular company chooses

disclose. The concern of the DNR, in any event, related to emis-

Sions of volatile organic compounds, and not to total hydrocar-

dons, as such. The production processes at Alcolac, the DNR

wt TT

witness acknowledged, generated volatile organic compound emis-

sions. The “emission inventory” of volatile organic compounds for

year 1983 did not list Alcolac, the witness agreed, because

"Alcolac did not choose to send [DNR] any written information

about any volatile organic compounds."

Hughie Clay came to Sedalia in April of 1935 as plant

maintenance engineer at Alcolac. Suit then pended and at the time

Clay testified, he had worked at Alcolac for seven months. His

work function was to maintain the plant installation and attend to

upkeep and repairs. Clay performed no significant duty. Blowers

had since left Alcolac, and the plant operated without an environ-

mental control engineer during the period Clay was employed there.

The environmental responsibility, rather, reposed in plant manager

Aid. The description given by Clay of the production and environ-

mental control processes during his brief span at Alcolac depicted

a plant of sophisticated design and virtually flawless operation.

Cross-examination elicited, however, the incidence of two fires in

the monomer building during his seven-month span of employment. He

acknowledged also that he was not informed about past systems

malfunction at the plant, and that even the most perfectly de-

igned safety feature could be rendered irrelevant if bypassed.

Opinion for the Plaintiffs

The Alcolac Operation: Opinions of the Experts

The plaintiffs presented Frederick W. Boelter, indus-

trial engineer and staff expert on industrial hygiene with

+ =

- -

7a re 9 er

arnow-Connibear Associates,” rc his opinion on the satfeness o

2carnow-Connibear Associates is a medically based consultation

firm which provides services to governments as well as private

clients on a broad range of occupational and environmental health

subjects. The staff associates are experts in numerous disci-

—————— hl

nin trendy Vatu lta aaa

the Alcolac operations to the residents of the environs. His

opinion rested on numerous evidentiary sources, among them: the

WAPORA document; schematic designs of the facility: observations

of the physical Alcolac facility: air and water tests conducted on

and near the plant premises; analysis of the plant production

documents for the past seven years [1978 to 1985]; analysis of the

raw materials, production processes and intermediate chemical

products; official documents and memoranda between the Missouri

Department of Natural Resources; and the internal records of

Alcolac. To derive opinion, the witness interrelated the evidence

from these sources to the environmental control practices de-

scribed by the several Alcolac employee witnesses.

Boelter gave opinion that, despite the state of the art

design of the environmental controls installed at Alcolac, the

neglect of these procedures by the employees as well as the mal-

function of the control equipment, has resulted from 1978 in an

operation that has not been safe to residents in the environs from

exposure to toxic chemicals and compounds.

Boelter elaborated: the lack of trained personnel,

the practice of the Alcolac employees to use the bypass equipment

to route the monomer toxic liquid waste stream around the filter

system so as to discharge directly into biopond one, the practice

of the employees to discharge the surfactant liquid waste stream

into biopond one instead of biopond two as the design intendes

so that the toxic waste intermixed with the soap waste with the

resultant risk that the toxic compound would be borne into the

atmosphere, the tailure to control emissions inside the buildings

and allow the vapors to vent into the atmosphere t rough open

Himtnmnnnaes Z

plines - among them, toxicology, epidemiology and industrial

hygiene. The witness Boelter served as director of environmental

vices for the Associates.

doors, the want of a valid spill control program, the falsif:-

cation of records, the lack of a standard operating procedure -

all bespoke a management “terribly lax in addressing basic plant

operation requirements" and were contrary to industry standards.

Boelter also related his opinion of unsafe operation to

the log of chemical spills kept for the year 1981 by Blowers

during his service at Alcolac as environmental control engineer.

The log recorded 111 spills - among them quantities of such ex-

tremely toxic chemicals as epichloroydrin, allyl alcohol and allyl

methacrylate. The log explained the cause for each recorded

spill, and a number of them - as interpreted by Boelter -were the

result of a want of standard operating procedure, employee neglect

and equipment leaks.

Boelter also determined from the history of equipment

lfunction and misuse, that Alcolac was from inception in 1978 an

operation unsafe to nearby residents. The incinerator designed as

the environmental control for the disposal of the hazardous liquid

waste from the monomer process never functioned properly, and was

abandoned in 1981. In that interim, the malfunction frequently

resulted in incomplete combustion of the waste and hence emission

of that, and other, toxic residue into the atmosphere. The fume

incinerator used for the combustion of the vapor wastes in the

os ~ rn - 1A na za < | # yy, ; 5 , ~

onomer buildin g also did not always function so that toxic wastes

m4 - < oo ) mn _ ~

were emitted from that source also. The acid scrubbers in the

< = - . } , os € 5 +

Surfactant building often did not function with the consequence

that the bioponds were further stressed by the additional soap and

their normal biogradation function impaired. When the acid scrub-

ber malfunc. ‘oned, also, sulphur dioxide, sulphur trioxide and

sodium hydroxide - all regulated by law as pollutants - were

emitted in the form of a plume of dark smoke.

eet ET EP pe Bill

Boelter also rested opinion on the recurrent overload of the

bioponds with much higher quantities of organic wastes from

monomer building than the design contemplated [noted by WAPORA as

the

early as 1978], with the consequence that the biodegradation of

the chemical wastewater was impaired.

the surfactant deposits from the faulty acid scrubbers,

dentiary sources disclosed,

geth

ana

the

Gispelled by

use

disclosed

to B

ammonium nitrate.

oelt

hat

These chemicals as well as

produced odors which

installation of

Thes

aerators

sources of

‘

the evi-

were never alto-

the bioponds

evidence

the bioponds were never monitore

toxicity either of the liguids or vapors.

safe

-.-

it)

cq?

—

O-pro

Boelter

fe)

Getectors on

rested

his opinion

—

the stacks and carbon

QO;

fy the

O7V

- x 7

L Ad

‘a

the nearby residents on yet another

beds to monitor

“"

clon

a 4

ops

made ea

ALIA

(Dp

ecise hydrocarbon com

)

fe)

ry)

19)

methanol and ‘other organic compounds. They determined that Alco-

lac contributed to the level of sulfates, but were inconclusive as

to methanol and the other compounds. Boelter explained that the

testers had no real knowledge as to what was in the process of

manufacture on those days, therefore the sampling was "essentially

blind."

The second survey was conducted on September 4 through

September 7, 1984, and involved both air and water tests. The

water at the residences of six of the plaintiffs was tested, as

was the ambient air, to determine any detectable level of six

specific toxic compounds. The tests of the samples disclosed no

significant concentration of any of those six contaminants.

Boelter explained that on the days of the tests, the plant was

"not operating in a way to determine the level of activity and

again, the compounds that were being used and what was being

manufactured at the time was unknown to us."

The third survey was conducted on June 22, 1985, on the

Alcolac premises under the auspices of a court order. There was

no plant activity on that day, and hence air samples, S3o0elter

explained, would have been of no use. [The Alcolac records for

that day and the several days before indicate that the reactors

were in the process of restoration and otherwise inactive.] Water

samples were taken from bioponds one and two. Toluene, a toxic

compound, was found in a concentration of 240 parts per billion,

as well as other compounds, one known as two-three dichloropropene

and another called three-three oxybispropene. The significance of

the presence of toluene [although in relatively low concentra-

oelter explained, is that that toxic compound is very

oe |

volatile and so indicates a more massive recent presence. The

Significance of two-three dichloropropene is as a "footprint" for

epichlorohydrin, a very toxic compound. The chloropropenes,

Boelter explained, are a degradation product of epichlorohydrin

and indicate that epichlorohydrin was present. Boelter explained

further that it is impossible to sample directly for epichloro-

hydrin in water since it is so volatile. “It has a very short

half life in water" and disappears very quickly either by evapora-

tion into the air or by decomposition into other products such as

dichloropropene. Propene [also known as allyl ether], a toxic

organic compound also found n the bioponds water samples, is

formed from the reaction between allyl alcohol and sulfuric acid -

chemicals used in the Alcolac production process. The tests de-

tected another toxic compound in the biopond waters - a nitro-

samine called N-nitrosomorphyoline, the result of the heavy use of

ammonium nitrate in the bioponds to dissipate the odors. The de-

tection of the presence of the morpholine compounds is signifi-

cant, Boelter explained, because they are associated with the

manufacture of cosmetic chemicals - the production of the surfac-

tant plant.

Boelter concluded that the presence of these organic

compounds in the bioponds was “of particular concern" because the

Samples were taken under conditions much more favorable than

"historical conditions,"2° and if what was found was any indication

"the conditions historically were more than likely much worse than

this and with the difficulty in controlling the ponds and the foam

that is generated, this could be a very significant contribution

e effects on the surrounding environment." Boelter observed

that only in the chemical and industrial plants of “third world

wii

countries" had he seen "this bad of a situation in one place."

nto the Alcolac premises for testing purposes under

r was deferred for a week. On the day of the

ome days before the Alcolac records show, the

tests, an rs

r Ors were reconditioned and there was no production

monomer

activity.

Opinion for Alcolac

Alcolac presented the deposition testimony of Robert B.

Jacko, Ph.D., expert in environmental engineering and faculty

member of the Purdue School of Civil Engineering. The witness

lso had conducted research in the flow of toxic pollutants in

~_—

chemical and other facilities, but that inquiry did not include

heal

ee oo ee

~~ os

th studies.

Dr. Jacko made three visits to the Alcolac facility. The

t two were in the autumn of 1984, and the third was on June

1985, the same date the Carnow-Connibear Associates conducted

ts on the Alcolac premises. In preparation for these visits,

ko was furnished with numerous documents and other information

ch included the environmental study conducted by the Carnow-

nibear Associates off-premises in the vicinity of the Alcolac

t. Jacko was also furnished the specifications of "all the

vironmental control systems at Alcolac, as modified by Alcolac

oyees to update them.” It was on the basis of that informa-

as well as his observations and over-flights of the facility

the Jacko testimony and opinions are based.

It was the opinion of expert Jacko that Alcolac func-

ed as a closed system for the containment of volatile and

nic vapors. That is to say, the environmental control devices

ated so that the vapors were not released into the atmosphere

l the organic matter had been expunged. In the warehouse

Sing, in case of a chemical spill, the building was completely

ed and the fans carried the vapors to the carbon beds for

rption. In the monomer building, a system of ducts captured

pors and conducted them to the carbon beds for adsorption,

ors are then emitted through the fume incinerator. In

scrubber removes the sulphur

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dioxide and sulfur trioxide before the vapors are emitted through

the stacks, and the other, the solid particulate matter. The

emissions from this operation, the witness testified, conformed to

the EPA standards. In the environmental control building, the

vapors from the monomer liquid collected in the sumps ran through

a carbon adsorption system, then through the caustic scrubbers,?!}

into the fume incinerator, and then emitted into the atmosphere.

Jacko conducted no tests, either of the ambient air or

of the bioponds. He “walked the ponds" with Boelter on the June

22, 1985 occasion, but "perceive[d] no significant odors at that

time." Jacko mentioned two monitors on the bioponds, one to

measure biological oxygen demand, and the other to measure dis-

solved oxygen. He noted no Alcolac procedure or practice to test

the bioponds for toxicity. The witness alluded to a sulfur emis-

Sion test conducted on June 20, 1984 by the Shell Engineering

Associates on behalf of Alcolac. The test was for both sulfates

and sulfur dioxide, as required by the abatement agreement with

the DNR, and certified that the emission rates of both samples

were in concentrations lower than the maximum allowed limits. The

witness also alluded to the extensive forms submitted by Alcolac

for air pollution permits then issued by official agency, presuma-

bly as evidence of valid environmental practices.

lithe environmental control systems Jacko observed and described

were those as "updated" and in place at the time of his observa-

tions and environmental appraisals in 1984 and 1985. The caustic

scrubbers were installed in the monomer building as a result of

the May 30, 1980 abatement agreement with the DNR. The liquid

incinerator [according to Blowers], never effective as the envi-

ronmental control device for the disposal of hazardous waste, wa2s

no longer in use after mid-1981. Accordingly, the testimony of

Dr. Jacko does not allude to that mechanism, nor does his opinion

that Alcolac functioned as a "closed system" consider the evi-

Gence of the malfunction of the liquid incinerator from 1978

until its use was discontinued, nor the concerns expressed by

WAPORA and the DNR to Alcolac of the adverse environmental ef-

fects of the continued malfunction of that device.

Jacko mentioned no adverse environmental consequence

from the past acknowledged malfunctions of the environmental

control system as “updated” - as of the acid scrubbers in the

surfactant building and the hydrocarbon monitor installed under

the abatement agreement. It is evident that the deposition opin-

ion Jacko rendered - that Alcolac functioned as a closed environ-

mental system as to volatile or organic vapors - was essentially

an appraisal of conditions observed in 1984 and 1985.

Alcolac also presented the testimony of Harvey Shell,

chemical engineer and president of Shell Engineering and Associ-

ates. Shell Engineering conducted a test of the surfactant stacks

at Alcolac on June 20, 1984, and of the monomer fume incinerator

stack on June 26, 1984. The surfactant test was undertaken to

comply with the term of the abatement agreement that Alcolac would

test the surfactant stack semi-annually for emissions of sulfur

Gioxide and sulfur trioxide acid mist. The surfactant tests

certified that the emission rates were in concentrations less than

the maximum allowed by regulation. Shell acknowledged that the

test was for total hydrocarbons, and not for emissions of specific

organic compounds. Hence, what the emissions were, or if they

were toxic, were not determinable by the test.

Shell took no test of the biopond for toxicity, nor of

the foam. Nevertheless, he disagreed with the conclusions of the

nibear test that the quantity of toluene measured in the

i a

biopond was a significant source of toxic emission. He concluded,

rather, that "the ponds are working and doing what they are sup-

posed to do."

He rendered the opinion - based upon reports submitted

Dy Missouri Pacific to the DNR that it generates twenty-nine tons

of emissions per year in total hydrocarbons and in volatile or-

ganic compounds - that the Missouri Pacific operation contributed

to the ambient emissions in the area of Alcolac. Shell acknowl-

edged he had undertaken no tests of Missouri Pacific emissions.

III

The Chemicals

Alcolac produced surfactants and monomers. The surfac-

tant production, for the most part soaps, was a continuous opera-

tion. The chemical ingredients as well as the wastes, according-

ly, were constant.?¢ The monomer production, on the other hand,

was custom designed to the needs of the customer, and production

Gepended upon demand. The chemical ingredients of the monomers,

therefore, varied according to the order. Many of these chemicals

were toxic - as were their wastes. Of these, some were rated as

hazardous by the Environmental Protection Agency.23 Others of the

many chemicals usee@ in the monomer production may have been more

toxic and hazardous than those identified in the testimony, but

have never been tested for toxicity, so that the effects of these

The constant wastes from the surfactant process were sulphur

Gioxide, sulphur trioxide, an acid mist of sulphuric acid and

some sodium hydroxide.

''POXICITY AND HAZARD: "Toxicity is defined as the ability of a

chemical to cause injury once it reached a susceptible site in or

on the body. Hazard is defined as the likelihood that a chemical

will cause injury under circumstances of ordinary use." N. Sax,

Dangerous Properties of Industrial Materials 2 (6th ed. 1984).

agents on the biological system are not known. 14

Among the chemicals regularly used by Alcolac in the

monomer production process, and already tested for toxic effect,

were epichlorohydrin, allyl alcohol, ethyl acrylate, toluene,

glycidyl ether and cyclohexene. Of these six chemicals [Dr.

Legator testifiedl>], five are designated as hazardous by the EPA,

and three are known carcinogens. The effect of a toxic chemical

on the human body, Dr. Legator explained, depends upon the concen-

tration of the chemical and duration of the exposure to it. Or, as

rendered into a formula: "Concentration times time equals ef-

fect." That equation is subject to variables - among them, the

genetic susceptibility of the person to chemicals and the mode of

life adopted by the person. The exposure may be chronic —- over a

prolonged time, or acute =—- over a short time. The toxic effects

may also manifest as chronic or acute. There are diverse portals

through which the toxic chemicals gain access to the body. The

major routes are through the skin, the mouth of lungs. A toxic

chemical may characteristically attack a particular organ or may

target multiple organs. When absorbed, toxic chemicals can affect

the immune system and, if the dose is high and prolonged enough,

can cause mutations in the human body.

toxicology of the Alcolac chemicals was the subject of the

imony of expert witnesses Dr. Marvin Legator and Dr. Betram

ow for the plaintiffs, and Dr. Sorrell Schwartz and Dr.

rd Emmett for the defendant Alcolac. That testimony estab-

hed that the Environmental Protection Agency [EPA] toxic

stance list numbers 130,000 industrial chemicals as toxic. Of

t number less than 5% have been studied for toxic effects; and

S than 1% have been studied for carcinogenic or mutagenic

ect upon humans.

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Marvin Legator, Director of Division of Environmental

icology at the University of Texas Medical Branch and erst-

le professor of genetics - among an array of professional

dits - was presented by the plaintiffs for expert testimony on

eonecn yo

Where the exposures are from multiple toxicants [as in

the monomer production process], Dr. Legator explained, the com-

bined toxic effects from the interaction may be much greater than

the mathematical sum of their individual effects. As toxicologist

16 commented, science recognizes chemical

Schwartz

interactions where "one and one equal ten." That effect is known

by the technical term syneraism. Another means whereby toxic

chemicals may become more toxic is by the process of pyrolysis.

That term means merely breakdown by heat. Incineration was the

form of pyrolysis used by Alcolac to dispose of some toxic wastes.

If the incineration is at a heat effective to destroy the chemi-

cals [Dr. Legator explained], the toxic effects are also de-

Stroyed. If the incineration is incomplete so that the chemicals

are only partially destroyed, the pyrolysis may result in more

toxic chemicals than originally and "produce more chemical in the

atmosphere." Dr. Legator gave as Opinion - in terms of pyrolysis

- that the effect of the operaton by Alcolac of the liquid incin-

erator at low heat levels because of continued malfunction was the

discharge of more toxic substances.’

Dr. Sorrell L. Schwartz, Professor of Pharmacology at Georgetown

University Medical Center, Scientific Director for the Center for

Environmental Health and Human Toxicology at George Washington

University - among an array of professional credits - was pre-

sented by Alcolac for expert testimony on toxicology and

pharmacology.

It was an opinion confirmed by Jacob Bregman, president of

WAPORA, and architect of the environmental control systems

installed at the Alcolac plant:

Pyrolysis, the term means breakdown by heat, and

when you take a chemical and put it in an incinera-

tor, or heat it up in any way, the chemical breaks

down. That's called pyrolysis.

Depending on the chemical, the eventual breakdown

products are carbon dioxide and water. However, it

goes through a whole series of smaller chemicals,

Dr. Legator then discussed the toxicological role of

each of the six chemicals used in the monomer production process

at Alcolac and already tested for toxic effect:

EPICHLOROHYDRIN

Alcolac used some 378,000 pounds of epichlorohydrin per

year. It is listed by the EPA as a direct carcinogen, a hazardous

substance, and a hazardous waste. It is a volatile chemical and

enters the human system through inhalation and also the skin. The

target organs are the brain and the central nervous system, as

well as the kidney and liver, among others. It affects the blood

and causes porphyria - a disease of liver metabolism. The chemical

is also a mutagen and induces “transmissible genetic damage." It

has also been identified as the cause, even at "very low concen-

trations," of chromosome damage in humans - that is, to "[tJhe

package that holds our DNA." That is significant, Dr. Legator

explained, because "literally every chemical that I know of that

causes chromosomal damage also causes cancer." It is an identifi-

cation of cause, moreover, borne out by epidemiological studies.

Animal studies confirm that epichlorohydrin causes a variety of

cancers in different organ sites, breaks down the chromosomes, and

affects the reproductive system.

me eee ee ee ee ee ee ee es

some of which may be toxic, some of which may not

de toxic, and they all eventually break down.

Those are pyrolysis products.

If the incinerator isn't operated properly, not

only do some of the original chemicals get out, but

some of these breakdown [sic] products.

Dr. Bertram Carnow, another expert in toxicology and

other sciences,/}8 described epichlorohydrin as a direct carcinogen

- “an extraordinarily active chemical," a "grabber" which "grabs

onto DNA" and changes it. The chemical also deforms the immune

system so that it cannot respond to the attacks on the DNA by

cancer cells. Dr. Carnow confirmed that the indication of an

earlier epidemiological study that exposure to epichlorohydrin

presents a risk of cancer to humans has been "more strongly

proven." The witness considered it significant that Alcolac has

used an average of 378,000 pounds of the chemical in each of the

past seven years, since even "(iJn very small quantities, it is

extraordinarily toxic." The volatility of the chemical, moreover,

is such that if "put out into water, [i]t will go from water into

air." A test of Alcolac biopond one by the Carnow professional

group found "the footprints of epichlorohydrin" in the waters.

The toxicologist for Alcolac, Dr. Sorrell Schwartz,

agreed that epichlorohydrin can cause damage to multiple organ

Systems - the liver, the lung, the kidney and other sites. He

would not acknowledge it as a "foregone conclusion," however, that

the compound can cause porphyria, but considered it "certainly

plausible," since the cheticel "Goes have a fairly extensive

ability to interact with the systems, with the liver." The wit-

ness agreed that epichlorohydrin, as an alkylating agent, is a

“cell-killer," but maintained that it has not been demonstrated

that the chemical depresses the immune system in humans. Dr.

Schwartz agreed that chronic effects may result from exposure to

r. Bertram Carnow, a partner in the professional consultation

firm, Carnow, Conibear & Associatés, was the most prominent

expert witness presented by the plaintiffs. His testimony ranges

over some ten volumes of transcript. A fuller and more consid-

ered discussion-of the expert qualifications and testimony of Dr.

Carnow is rendered in the course of opinion.

epichlorohydrin in adequate doses and that the chemical is a

proven animal carcinogen. He concluded: "It is possible that it

can cause it in humans." Indeed, it was the opinion of Dr. Arthur

Cs: Zahalsky, presented as an expert on immunology by the plain-

tiffs, that epichlorohydrin is not only a carcinogen, but acts

adversely on the human immune system. .

The opinions of Dr. Edward Anthony Emmett, another

expert witness for Alcolac,?9 were somewhat at variance with those

given by Alcolac toxicologist, Dr. Schwartz, as to the toxic

effects of epichlorohydrin. Dr. Emmett acknowledged that recent

publications conclude that exposure to epichlorohydrin presents a

risk of cancer to humans. He agreed with the other witnesses that

epichlorohydrin, as an alkylating agent, is "dangerous and power-

fully reactive to chemicals” and “combines avidly with tissue.”

The witness deemed it "certainly possible" that exposure to such a

chemical could "depress and destroy the immune system" in humans.

Dr. Emmett testified that toxic chemicals cause a form of porphyr-

ia called toxic porphyria. He intimated that epichlorohydrin can

cause that species of porphyria.

The material safety data sheet*° issued by Alcolac to the

work personnel in compliance with OSHA directive informs that

* epichlorohydrin, in liquid form, "can be fatal if swallowed," and

"Chjigh vapor concentrations can cause death.” It informs also

that "the results of a recent epidemiology study have been termed

"highly suggestive’ that exposure to ECH is a cancer risk to

humans." The data sheet describes as the effects of overexposure:

The qualifications of Dr. Emmett ranged from internal medicine,

dermatology, environmental occupational medicine to toxicology -

among others in an extensive pedigree.

29See APPENDIX I and J for full text of the material safety data

sheet issued by the Alcolac supplier, Shell Chemical Company.

Fe ee es eT

"Vapors severely irritating to the eyes, nose and throat. Re-

peated or prolonged exposure can cause severe and lasting lung,

liver and kidney damage and change in lymphocytes [cells in blood

and lymph]...Cancer suspect agent." It gives the special precau-

tion: “Notify authorities if any exposure to the general public or

environment is threatened by a spill."

Epichlorohydrin was among the toxic compounds spewed

about from blow-outs of ruptured disks [as reported by monomer

operator Buckner and environmental control technician Holman. ]

It was also a component of the 2900 gallon and other spills re-

corded in the Blowers log for year 1981.

ALLYL ALCOHOL

Alcolac used some 416,000 pounds of allyl alcohol per

year. It is listed by the EPA as a hazardous waste. It gains

entry into the human system by inhalation and is readity absorbed

through the skin. Allyl alcohol can have either a chronic or

acute effect on humans, according to the concentration of the

exposure. The target organs are the liver and Kidneys, among

other systems, and exposure may cause necrosis. Allyl alcohol

also acts as an enzyme and converts other chemicals in the body

into even more toxic substances. It has been demonstrated in

vitro to alter genetic composition. It was the opinion of Dr.

smmett, Alcolac environmental occupation medicine and toxicology

expert, that exposure to allyl alcohol can cause mutagenic effects

in humans.

Spills and emissions, of allyl alcohol in the monomer

building were reported in the evidence. Environmental control

tester Holman described an explosion of a monomer reactor which

Spewed a combination of allyl alcohol, epichlorohydrin and stannic

acid. The toxic spill log maintained by environmental control

engineer Blowers records a spill of 2900 gallons of AGE stripped

Srine - a fluid composed of allyl alcohol ana epichlorohydrin.

epee ss—s—s—te pre

Monomer and surfactant operator Faulconer described a spill of a

guart of allyl alcohol whose vapors were allowed to emit into the

atmosphere. Allyl alcohol was also a cOmponent of the monomer in

production at the time of the explosion of September 25, 1981,

which blew off a segment of the factory roof and strewed the

debris onto private property. It was an observation of one of the

numerous WAPORA reports from Bregman to the Alcolac officials that

the habitual “sloppy handling” of allyl alcohol in the monomer

production process was a cause of the recurrent odors and posed,

as well, an environmental hazard.

The material safety data sheet circulated by Alcolac to

the plant workers to comply with OSHA @Girectives describes allyl

alcohol as a colorless liquid with a sharp odor. In vapor form,

it is “highly irritating to the eyes, lungs and damaging to the

liver and kidneys." It warns: "Onset of eye irritation may be

delayed but can be severe...Absorption through the intact skin can

cause injury or death." The sheet concluded with the special

precautions: "Handle as flammable liquid and as a poison...

Notify authorities if any exposure to the general public or envi-

ronment is threatened by a spill."

ETHYL ACRYLATE

leolac used some &3,000 pounds of ethyl acrylate per

year. It is listed by the EPA as a hazardous waste. It is car-

cinogenic to animals, but present data does not support the expec-

tation that exposure causes cancer in humans. The compound also

affects the reproductive process in animals. Dr. Legator, expert

in toxicology for the plaintiffs, gave opinion that ethyl acrylate

is a mutagenic. The primary portal of entry is inhalation. The

chemical is very odorous and extremely irritating. Ethyl acrylate

may cause both acute and chronic effects. It is known to cause

convulsions, arrythmias and other strange manifestations of the

heart. It also affects the kidneys, heart, lungs, liver and

central nervous system.

The wastes from the monomer production process [as a

memorandum by Alcolac vice president Bouroff to president Anderson

noted] were "saturated with acrylates." It was to allay that

source of pollution that Alcolac was required by the abatement

agreement with the DNR to install alkaline scrubbers to remove the

acrylates from both the liquid and gaseous waste streams from the

monomer building reactors. The pronounced odors of ethyl acrylate

from the shift in the monomer carbon bed and spills were the

subject of report between Alcolac and the DNR.

TOLUENE

Alcolac used some 17,000 pounds of toluene per year. It

is an active compound and enters the human system through inhala-

tion and the skin. The compound attacks the respiratory system,

central nervous system, the liver, kidneys and heart. It causes

arrythmia, tremors, convulsions and other episodes of that ilk.

Its effects can be chronic, and - according to Alcolac polyexpert

Emmett - presents a "potential risk of cancer" in humans. Expo-

Sure to the chemical affects reproduction in animals and - accord-

ing to an authoritative text - also affects human fertility. It

was the opinion of Dr. Zahalsky, immunology expert for plaintiffs,

that toluene is toxic to the cells and acts on the immune system.

Toluene not only attacks the organ systems of humans, but exposure

to the chemical by domestic animals induces a range of effects -

such as convulsions, loss of motor control, and even death.

It was this chemical, tolwene, which - according to

environmental control building technician LeMaire - on occasions

overflowed from the sump pits to the exterior and into Shaver

Creek. It was this chemical also which spilled outside in such

Quantity as to cover the adjacent irrigation pond to a depth of

one-half inch. The test of biopond one by the Carnow profes-

sional group which found “the footprints of epichlorohydrin” in

the waters found toluene also. It was the opinion of toxicologist

Legator that spills of toluene and related chemicals exposed to

the air evaporate and - depending upon atmospheric conditions -

"blow around to the surrounding population.”

GLYCIDYL ETHER

Alcolac used some 390,000 pounds of glycidyl ether per

year. It is a highly reactive chemical and enters the bodily

system through inhalation, the skin or through the mouth =- if

contained in food or water. Glycidyl ether affects the liver, the

kidneys, the respiratory tract and the central nervous system. [It

causes peripheral neuropathy and manifests in numbness, tingling

and leg cramps. Prolonged exposure to the chemical produces

chronic effects. Glycidyl ether is known to cause cancer in

animals, and, according to Alcolac toxicologist Schwartz, "is

possible" as a cause of cancer in humans.

Toxicologist Legator, in response to a hypothesis posed

from the evidence of ninety residents within the Alcolac environs

that from 50% to 60% of them experience continuous tingling and

numbness of the extremities, equated that incidence with “walking

down the street and seeing seven people who are eight feec tall."

CYCLOHEXANE

ol lso used cyclohexane in the monomer process.

ac a

Ale

[The evidence does not disclose the quantity.] It is listed as a

hazardous waste by the EPA. The portal of entry is inhalation and

the target organs are the respiratory and the central nervous

systems. It causes erratic blood pressure, sudden nosebleeds,

lethargy, depression and vascular disorders.

In addition to the six chemicals already tested for

toxic effect - epichlorohydrin, allyl alcohol, ethyl acrylate,

toluene, glycidyl ether and cyclohexane - as explained dy the

ol ,

testimony of toxicologists Legator, Schwartz, Emmett and Carnow,

the Alcolac evidence identified other chemicals, also of known

effect, involved in the production process. Among them were

dimethyl sulfate, hydrogen sulfide, methyl chloride and allyl

qrethacrylate.

DIMETHYL SULFATE

That chemical, Alcolac toxicologists Schwartz and Emmett

agreed, enters the bodily system through inhalation and the skin.

The kidneys, liver, and the central nervous and respiratory sys-

tems are the target organs. If the exposure is persistent enough

and the dosage sufficient, the effects of the chemical can be

chronic. It is a carcinogen in animals and, according to Dr.

Emmett, carries risks of cancer to man. Dimethyl sulfate, im-

munologist Zahalsky explained, is an alkylating agent: it adds

new chemical groups into the compound. As in the case of epi-

chlorohydrin [and some of the other chemicals], absorption into

the human system operates to alter the DNA and to kill normal

cells. In the terminology of immunologist Zahalsky, dimethyl

Sulfate attaches to cells and induces the genetic code sequence

"to go haywire." It was an opinion confirmed by Alcolac immun-

Ologist Stechschulte.

The material safety data sheet circulated by Alcolac to

the plant workers to comply with the requirements of OSHA warned:

"Extremely hazardous liquid and vapor. Causes severe burns. Lung

injury and burns may be delayed. May cause cancer [based on tests

with laboratory animals])."

HYDROGEN SULFIDE

"Hydrogen sulfide is deadlier than cyanide," Dr. Carnow

explained. This compound is absorbed into the bodily system

through inhalation and the odor of rotten eggs attends its pres-

ence. The odor of rotten eggs was a recurrent emission from the

bioponds. The cause of these odors Dr. Carnow attributed to the

DEE

production of hydrogen sulfide from the overload of the bioponds

with toxic chemicals. It was the recurrent rotten egg odor of

hydrogen sulfide in the sludge of the overused bioponds that Dr.

Reid detected during his tests and examinations for WAPORA. It

was also hydrogen sulfide DNR official Nikkila detected during one

of his investigations of the bioponds. He attributed that emis-

sion to insufficient aerators or to overloaded use.

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liver, the kidneys, the respiratory and central nervous systems.

It was the opinion of Alcolac toxicologist Schwartz tha

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could result in damage to the porphyrin metabolism. Dr. Carnow

elaborated: In relatively low concentrations, hydrogen sulfide

causes dizziness, vomiting and severe headaches. In higher con-

centrations, it causes Drain damage, respiratory paralysis and

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It was a chemical found in the biopond waters in tne

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32 O0UD. It was among the toxic wastes 'accorcing to monomer sopera-

eae Ta TT erareac ~ APiIiM ~ alsn thea hleslac 4r ,evay

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was permitted to emit into the atmosphere. It was among the toxic

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waste remnants, according to Faulconer, Alcolac personnel cis

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carced from tankers before replenishing them. Methylene chloride

5 ” , : eh iG é

enters the human system through inhalation and the skin. In a

Sficient dose it affects the liver [and hence porphyrin metabo-

lism], the heart, and central nervous and respiratory systems. [It

was tne opinion of Alcolac toxicologist Schwartz that in adequate

rolonged dosage, methylene chloride may cause cancer and

mutations in humans and depress the immune system.

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partially consumed. When the waste was not consumed, it was

emitted into the atmosphere unchanged and still toxic. When the

waste was partially consumed, it was emitted as chemical fractions

of the toxic waste, often with multiplied toxic effect.

The remnants of these unconsumed wastes retained in the

liquid, and their pyrolysis products, moreover, then flowed into

the biopond to mix with the toxic wastes periodically pumped

around the filtration system and into the biopond. The effect of

such a potpourri [in the terminology of Dr. Carnow] was “a witch's

brew," a "chemistry set that is unbelievable [of] extraordinarily

active chemicals, alkylating agents, like epichlorohydrin. [yJou

put them all in one place and there is no way of knowing the

extraordinary number of toxic agents that you might produce in

such a soup." It was significant, Dr. Carnow explained, that the

chemicals used and emitted in the monomer production process -

epichlorohydrin, allyl alcohol, ethyl acrylate, toluene, glycidyl

ether and cyclohexene - attack common organ systems: the liver,

the immune system and the central nervous system. He described

the mode and effects of concerted assault:

They are extremely active. That's why they are

so irritating to the eye’ and the nose, because

they attack protein .. . They attack and can

even coagulate protein, and when they get into

the body, they head for organs, and... can

cause very severe damage, but again in low

concentrations, they eat away at an organ. They

cause damage, and if you have more than one

- «+ « you may have either what we call an

additive effect, that's where one and one is

two, or you may have what we call a synergistic

effect, and that's where two chemicals have more

than an additive effect. That's when two and

two is six, or ten, or something like that, and

that makes it even worse. You have the worst of

all possible situations when you have chronic,

recurrent exposure, you have multiple chemicals

that are highly reactive, you have multiple

portals of entry, and you have these chemicals

acting together to attack major organ systems.

Residents in the Environs of Alcolac

The Plaintiffs-Witnesses

Alcolac is located on an industrial site northeast of

the Sedalia limits in the midst of land still used for agricul-

tural purposes. The industrial area of Sedalia proper lies to the

southwest of Alcolac within the city boundary. The thirty-one

plaintiffs, composed of twelve family groups, all resided within

one and one-half miles of Alcolac - most of them much closer.?! al]

but one of the family groups had established residence there

before the advent of Alcolac.?2 The ages of the plaintiffs range

from 75 years [Virgil Bradley] to 1l years [Amber Cross]. It was

the uniform testimony of all the plaintiffs that the onset of the

foul and noxious odors, fumes, smoke, vapors and emissions they

experienced coincided with the commencement of Operations by

Alcolac. Storms of foam from the bioponds were borne onto their

lang 2° and onto Little Shaver Creek and transported throughj other

properties. 74 It was the uniform testimony of the plaintiffs that

exposure to these Alcolac emissions caused them symptoms - most

commonly and recurrently - eye, nose, throat and skin irritations,

nausea, vomiting, numbness and tingling of the limbs, heart ir-

regularity, respiratory difficulty, and other afflictions. The

odors were described variously but recurrently as those of rotten

21sec Appendix B. The dark circles indicate the residences of the

several plaintiff families. The heavy, dark line in approximate-

ly the middle of the Appendix marks the bounds of the Alcolac

Site.

22nhe plaintiff Gehlken purchased the residence before Alcolac

commenced operations in May of 1978, but took up actual residence

fhereafter, in July of i978.

See APPENDIX Cc.

24see APPENDIX D.

eggs, sulphur, lacquer, ammonia, of sweetness, and of other famil-

iar scents. It was the uniform testimony of the plaintiffs also

that they had experienced no noticeable emissions or impairment of

health from the operations of other enterprises in the locale, in

place since before the advent of Alcolac.2° There were innumerable if

reports of these annoyances, intrusions and physical effects to

Alcolac, the DNR, and governmental officials at every level, but :

to no avail.

The frequency and intensity of the atmospheric emissions

from Alcolac, these witnesses agreed, depended upon the direction

or calm of the wind. There was expert meteorological testimony,

derived from statistical observations taken at Whiteman Air Force

Base near Sedalia, that the wind blows from the south 12.5 percent

of the time, blows from the south-southwest 8.5 percent of the

time, from the north 8.5 percent of the time and remains calm

[that is, blows at less than 1 mile per hour] 13.5 percent of the

time. The wind is light and variable 47% of the time. That

latter statistic, the expert concluded, indicated "a very excel-

lent opportunity for the people in the vicinity of the plant to

detect odors a large percentage of the time.”

The members of each plaintiff family group testified to

the recurrent incidences of exposure to the Alcolac emissions and

the physical symptoms they induced, to their life modes and hab-

its, and to other personal data which relate to the expert assess-

ment of the etiology and causation of their complaints of environ-

mental injury. This history data was of the same kind elicited

from each of the plaintiffs upon clinical examination and, along

The enterprises located in the industrial zone of Sedalia to

which Alcolac alludes as a source of emissions and discomfort to

the plaintiffs include, most conspicuously, the Missouri Pacific

Railroad yards, Missouri Pressed Metals, DeLong, Quality Fiber-

glass, among others.

with the results of physical examination and laboratory tests,

were significant elements in the derivation of environmental medi-

cine diagnoses by their physicians as well as those of Alcolac.?®

The Non-Litigant Witnesses

For the Plaintiffs

There was testimony, for the plaintiffs, from more than

fifty other witnesses, all nonlitigants also resident in the

environs, that the Alcolac emissions were causes of annoyance and

physical complaint. The locations of their residences ranged from

very next to the Alcolac plant to sites more than three miles

distant.’ Their occupations were as diverse as their ages. The

current of that testimony comported with the testimony of the

plaintiffs: the Alcolac operations gave off emissions in the form

of vapors, odors, smoke, fumes, foam and residues which physically

affected their persons. The odors and emissions were persistent

and recurred day and night. Black smoke belched from the Alcolac

stack even in the early mornings. A white residue covered the —~

grass and other vegetation and was an irritation to the skin and

exposed areas of the body. Suds and foam from the Alcolac bio-

ponds alighted on their property, even though several miles dis-

tant.

The witness responses are found in gist in APPENDIX E.

2’see Appendix B. The residences of the nonplaintiff witnesses are

marked by light colored circles.

They [as did the plaintiffs] described the odors as

scents of rotten eggs, lacquer, sickening sweetness, ammonia,

sulphur - and the like. They [as did the plaintiffs] described

the consequences of exposure to these discharges as irritations to

the nose, throat and eyes, matted eyes, redness and watering of

the eyes, kidney infections, skin rashes, headaches, cramps and

charley horses in the calves and legs, numbness and tingling in |

the limbs, nausea, fatigue, respiratory difficulty and irregular- |

ity of heartbeat. The more youthful females also complained of

interrupted and abnormal menstrual cycles. The symptoms, as to

most of them, persist. As to several of these nonlitigants who

removed from the environs of Alcolac, the symptoms disappeared.

They [as did the plaintiffs who kept gardens and animals] com-

plained that the emissions, especially in the form of a white

powder residue, afflicted the vegetation so that whole stands of

decorative, orchard trees and vegetable plants were stunted. Their

domestic animals and pets also died - and unaccountably and with-

out sign of predation. They included cultivated husbandry such as

bee swarms, cattle and chickens as well as domestic pets, such as

parakeets, dogs and cats. There was also evidence by a non-

plaintiff witness that Little Shaver Creek [which traversed the

property], the source of the drinking water for the cattle, was so

tainted by foam from Alcolac as to kill the fish and cause the

cattle meat to stink and become inedible.

It was the testimony of these witnesses [as of the

plaintiffs] - a number of whom resided for years adjacent to the

Missouri Pacific Railroad yards, Missouri Pressed Metals, DeLona

Welding and other plants - that not until Alcolac commenced opera-

tions were any odors or other emissions palpable, and not until

Alcolac were any ill effects to their persons or plants and ani-

mals experienced. A very few of them noticed an occasional odor

from Quality Fiberglass, but it was fleeting and of a different

quality. The odors and emissions from Alcolac were distinctive

and recurrent. It was the testimony of those among them whose

employment brought them onto the Alcolac premises for periods of

time - such as construction workers - that the odors and emissions

they detected from their residences were of the same kind they

experienced while in the Alcolac plant. It was the testimony of

all these nonlitigant witnesses that their symptoms, complaints

and changes of health came on after the Alcolac operations began

in May of 1978, and not experienced before.

The nonlitigant witnesses for the plaintiffs also in-

cluded public officials, some of whom lived within the environs

and others who did not, but all of whom frequently - even repeat-

edly - were called to the vicinity of Alcolac and onto the prem-

ises, day and night, in response to citizen complaints of odors

and other emissions. The experiences of emissions from Alcolac

and the symptoms from those exposures were congruent with those

described by the plaintiff witnesses as well as the other non-

litigant witnesses for the plaintiffs. Odors were emitted, smoke

from the stack, dense haze, and suds and foam from the bioponds.

The odors were described, variously, as "intense," "terrific,"

"bad" - of the sulphur type, of rotten eggs, septic or paint

thinner. The odors were the same off the Alcolac premises as they

had detected in the plant, and were noticeable from several miles

away. The foam and suds from the bioponds came in profusion - a

phenomenon Senator Mathewson described as: "[L]jike Lawrence Welk

had turned loose the bubble machine.” The vapors sometimes emitted

as "a very fine mist" and burned exposed skin. County Court

member Jones described the effects to exposure as irritated and

watery eyes and headaches. Sgt. Rice of the Sedalia police de-

partment [designated by the DNR to respond to citizen complaints]

experienced irritation to the mucous membrane from exposure to the

Alcolac emissions, as well as irritation to the nose and throat,

watering eyes and upset stomach. Environmental Quality Control

Commissioner Judy Berenyi suffered headaches, nausea, and a

"stinging skin“ even from a momentary exposure during the course

of her investigations of citizen complaints. The public official

witnesses agreed that there had been no citizen complaints of

odors or emissions or physical complaints from the operation of

the other plants in the vicinity - such as the Missouri Pacific

Railroad yards, Missouri Pressed Metal, DeLong Welding.

The plaintiffs presented other nonlitigant witnesses,

employees of Alcolac, whose descriptions of the emissions, their

odors, as well as the physical symptoms induced by exposure,

coincided with those of the plaintiffs and their witnesses. These

employee witnesses - Pace, Buckner, Faulconer and LeMaire -

identified the recurrent chemical spills, efflux of contaminated

wastewater into the bioponds, monomer reactor explosions, liquid

incinerator and acid scrubber malfunctions and, simply, careless

management of the chemicals as the sources of the Alcolac emis-

sions and odors. The detection of these emissions as odors of

Sulphur, rotten eggs, sweetness-- and a variety of other descrip-

tions - was explained by the characteristics of the chemicals used

in the particular phase of production. They testified that expo-

sure to these chemicals and emissions induced in them [as in the

plaintiffs and the other witnesses] a burning and watering of the

eyes, an irritation to the skin, nose and lungs, cramps in the

legs and feet, and numbness and tingling in the extremities.

For the Defendant

Alcolac also presented nonlitigant witnesses, a dozen or

so, who resided in the environs or had occasion to come onto the

plant premises. They included farmers, businessmen and public

ve P|

ER NE TN

a Matin

officials, as well as employees. A number of them resided adja-

cent to some of the plaintiffs. Several of the witnesses con-

ducted regular contract work with Alcolac, and a number of the

residents had family members employed by Alcolac. Witness Knaus,

a farmer, sharecropped Alcolac land. Witness Sneed, also a

farmer, cultivated pollen on Alcolac property. There were several

among them unrelated to Alcolac by business or personal interest.

There were some who experienced odors on the residence

Sites, or when they passed by Alcolac, or when they went upon the

plant premises. There were some who discerned none. There were

some who had seen foam from Alcolac alight on their property.

Those who detected odors described them variously: as rotting

eggs, pleasantly sweet, or as new plastic. It was the consistent

response to inquiry that the emissions caused no ill effect to

their persons. Those who kept gardens, crops and livestock all

responded that neither the productivity nor the quality was af-

fected. The well-being of their pets was not impaired.

There were other acknowledgments on cross-examination,

however. Farmer Reine [who lived near the plaintiffs Turley]

answered that some of his cows miscarried for reasons the veteri-

narian could not explain. He responded also that the children

suffer "terrible headaches," as does the wife, that she experi-

ences arrythmia and palpitations of the heart, has developed

Cramps on the calves of the legs, and suffers from an irregular

menstrual cycle. Pettis County Sheriff Starke responded that

exposure to Alcolac odors brought on a headache and a "burning,

peppery sensation in back of the throat." Resident Vicki McFall

answered that a drive by the Alcolac plant "burns your nose.: The

regular employment medical examinations, Alcolac chemical operator

Henderson acknowledged, cite his complaint of numbness and tin-

gling of the hands or feet. The medical examination reports of

Alcolac plant chemist Richardson note the development of abnormal

globulins and hemoglobin. The medical examination reports of |

Alcolac quality control technician Theresa Cecil disclosed two

immunity panel abnormalities. |

V .

The Medical and Scientific Evidence.

The Family Practitioner

Dr. Donald J. Allcorn

A number of the plaintiffs consulted Dr. Donald J.

Allcorn as personal physician, both for treatment of symptoms they

attributed to the Alcolac emissions, and for other reasons of

health. Dr. Allcorn, board certified in family practice, main-

tains an office in Sedalia. Two among them = Clarence Elam and

Dan Pryor - were treated by Dr. Allcorn for injury from mishaps

unrelated to the Alcolac operation. The other seven - Jacqueline

Berry, Virgil Bradley, Corothy Bradley, Betty Elam, Linda Elam

Sanders, Joyce Pryor and her daughter Amber Cross - consulted with

Dr. Allcorn for complaints attributed to Alcolac chemicals, as

well as for other conditions.

Dr. Allcorn was presented by Alcolac. He gave opinion

that toxic chemicals can cause many of the conditions and symptoms

the several patients displayed, but that they did not - "other

than [as to Mr. Bradley, and presumably, the others with like

symptoms] those related as possible irritation of his airways due

to odors.” He acknowledged both on direct and on cross-examination

that exposure to toxic chemicals can cause chest congestion,

urinary tract infection, nose and sinus irritation, skin rashes,

abdominal pain, tingling limbs, conjunctivitis, fatigue, respira-

tory infection, sore throat and dizziness - the other symptoms and

complaints displayed by these several patients. He concluded,

however, that none of these symptoms were the result of toxic

chemical poisoning, but could be explained by other causes. In

the case of Virgil and Dorothy Bradley [75 years old], he implic-

itty attribduted the complaints to their condition of age. In the

case of Betty Elam, he attributed the condition of emphysema to

cigarette use. Although the witness attributed the other

complaints of the patients to causes other than exposure to toxic

mh oe s ~ . ~ > > + ~ Ye -

emiacais ne ¢€1G not identify those ascernatives.

~ _ r ee + +

2ne Opinions rendered by Dr. AiiCorn were those of a

—— c ~ ar -~err + eo 7 + os nra- = S| — As lay _ nA } An a

e's yeew sa Git VTL 4A 4 ASU - a 2.y PlAaAcClice,. e reaciily acKnowledaqed

+ — + = ss & he = 4 : | - . 5 | + +

cnat he hac neither speciai training nor Guaiilication in occupa-

> -_ 7 ~ - o _ * _ ~~ «+ — j 4

~-i0One. mecicine, preventive mecacicin e toxicology Or immunology.

~ a

Na ms . . - ~~ > ~ » = -

rae ~ + ~ . ~ = i | in > >

procuction and emission processes - such as epichloro ydrin, allyl

aah A > . - - ~-a- ) = - .

aicono. Cametnyl sulfate, LOszuene anc tne others.

~~ e

an” > 5 ~

2he +mmuno.iogists

The testimony and opinions of the immunologists were

based on three sets of labor tory procedures performed between

August of 1984 and July of 1985, to test the immune system func-

tions of the several plaintiff

S. The plaintiffs presented the

testimony ane opinion of Arthur c. Zahalsky, professor of

microbiology and certified research immunologist. Alcolac pre-

sented Daniel J. Stechschulte, certified medical internist and

certified clinical immunologist.

The first immune panel was conducted by the Bioscience

Laboratory in Chicago [August of 1984] as an incident of the

Clinical examinations anda diagnoses of the plaintiffs by the

28 plaintiffs

Carnow Associates, their experts. All thirty-one

presented themselves for this series. The second immune panel

tests were conducted by the Kansas University Internal Medical

Center [December of 1984] at the instance of Alcolac. The proto-

col for that series of tests - as defined by Alcolac counsel and

internal medicine expert Kerby, a professor at the University of

Kansas Medical Center - excluded ten of the plaintiffs.29 It was

the surmise of Alcolac expert Stechschulte that the protocol did

not encompass the other ten because: “(T]he information that was

available .. . didn't dictate that these individuals had abnor-

malities in their immune systems." The third immune panel was

conducted by the Midwest Organ Bank and Wheeler Laboratory in

Kansas City [July of 1985] at the instance of immunologist Zahal-

sky. He was prompted to that initiative by a deemed inadequacy of

the KU Internal Medical laboratory test results and because the

pervasive abnormalities disclosed by the Bioscience immune tests

suggested the need for more particular information of the cell

compartments. He explained that the KU laboratory blood analysis

tests were inadequate because they expressed results in percent-

ages rather than as within or without normal range references - as

is the common practice - with the consequence that the counts of

the various cell populations could not be determinated nor the

normality of those counts. The KU procedure was all the more

wanting, he explained, because that protocol did not include

°Seqward Gehlken, an original plaintiff, was disabled from a series

of strokes and did not present himself for any of the examina-

tions, nor for trial testimony. The judgment directed against

his claim by the trial court is not on appeal.

29malva Gehlken, John Phillips, Daniel Pryor, Joyce Pryor, Linda

Elam Sanders, Arnold Sommers, Kay Turley, Lyle Turley, Amber

Cross and Dorothy Bradley. Edward Gehlken was also excluded by

the definition of the protocol, but he is not accounted a party

for the purpose of opinion.

all of the plaintiffs. It was for those reasons that immunologist

Zahalsky arranged for the third immune panel procedure at the

Midwest Organ Bank and Wheeler Laboratory in July of 1985. Twenty-

four of the plaintiffs were tested. Mrs. Landon by then was under

a regimen of cobalt treatment for cancer, and so was disqualified

for the tests. The six members of the Turley family were una-

vailable. The evaluation renderea by Zahalsky as to the Turley

family members rested on the tests reported by the Bio-

sciences Laboratory in August of 1984. The opinion as to Landon

rested on both the Biosciences and the KU immune panel results.

Arthur C. Zahalsky, PhD

The witness defined immunology as the study of the

components of the immune system of man and animals - the cells

that compose the system, the appearance of those cells, the origin

of those cells, the presence of those cells in the blood, and the

balance of those cells. He likened the immune system to "an

internal watchdog or searchlight" which surveils the cells and

expels those components which are not "okay," and thus restores

the homeostasis - the normal state of immunologic balance. The

component extruded from the body by this process, the witness

explained, might be the result of a mutational effect caused by

the activity of a bacterium, or a virus, or of a toxic chemical.

An immune dysfunction, accordingly, is the imbalance ana dysfunc-

tion of the cells of the blood. The consequence of dysfunction is

that the “internal searchlight" becomes dim so that harmful sub-

stances may appear in the body which escape recognition, and hence

elimination. One result of dysfunction may be neoplastic disease

= a condition of cancer. Another result, among the many others,

may be the inability of the body to fight infection. The immune

System function is determined by the genetic code of the person

- none of them exactly alike. The efficiency of the genetic

system depends upon the stresses imposed by the mode of life and

habits adopted by the person: smoking, the consumption of exces-

sive alcohol, abuse of drugs all stress the immune system. That is

to say, they affect how the genetic code expresses itself.

The immunologist noted that the immune systems of the

plaintiffs and of those nonlitigant residents of the environs of

Alcolac shared a common insult: the prolonged exposure to the

toxic chemicals in the environment in which they lived. He under-

took to explain the consequences of the exposure to the toxic

chemicals identified with the Alcolac production process in terms

of the function of the human immune system. The immune system is

not a specific organ but is distributed in the bone marrow, the

thymus, the spleen, and in the lymph nodes throughout the body.

In terms of function, the immune system has two divisions. One

function is the production of antibody cells which are dumped into

the blood and circulate to all parts of the body. These antibod-

ies, called B-cells, derive from the bone marrow and spleen and_

fight off infection. Another function of the immune system is to

"search and destroy," and is the "cell mediated" arm of the sys-

tem. Those cells include the T-cells, so-called because they

derive from the thymus glanc, although they derive also from the

lymph nodes and spleen. The T-cells exhibit distinctive charac-

teristics and are of four different types. They remember previous

insults and challenges, they live long, and have the capacity to

expand. The four types of T-cell populations are the helpers,

| =

Suppressors, cytotoxic and natural killers. The helpers cooperate

with the B-cells to produce antibodies. The Suppressors work in

balance with the helpers to avoid indiscriminate and undirected

responses. The cytotoxic cells are also suppressors and can

attack and destroy transformed [neoplastic] cells with or without

an antibody. The natural killer cells can also attack and destroy

without the help of an antibody.

An smbalance of the helper populations of T-cells

(technically designated as T/4], when induced by stresses and

insults of toxic chemicals, is a condition of immune system dys-

function properly designated: chemically induced AIDS. In common

AIDS, it is the virus [rather than the chemicals] which attacks

the helper [T/4] cells and so induces immune system dysfunction. 2°

In either case, whether the imbalance is induced by toxic chemi-

cals or by virus, the result is that much of the T/4 cell popula-

tion is depressed - "functionally wiped out." Thus, the balance

in the bloodstream "just goes completely out: of whack" and the

Production of T-cells cannot keep up with the demand. The conse-

quence, among other dysfunctions, is a progressive erosion in the

ability of the person to fight infection. In the case of viral

AIDS, the customary course of infection is in the lungs, which

eventually leads to respiratory collapse, and death. In the case

of chemical AIDS, the progressive erosion of the immune system may

induce neoplastic disease - anda cancer. Chemically induced AIDS,

the witness testified, is a phenomenon Supported in the medical

and immunological literature, and is a subject of research at the

National Institute of Environmental Sciences.

3°the viral version of AIDS sometimes goes by the designation HTLV

- which stands for "Human T-cell leukemia virus, *

It was the opinion of immunologist Zahalsky that the

condition of chemically induced AIDS could be brought on by expo-

sure to the chemicals regularly used and produced in the Alcolac

monomer process. Epichlorohydrin, toluene and dimethyl sulfate,

among the others, are toxic to cells and act to depress the immune

system. Dimethyl sulfate is also an alkylating agent which

"sticks" to cells so that the genetic code sequence “goes hay-

wire," renders the cells toxic and suppresses the immune sys-

tem.-/ The witness gave opinion that exposure to a “chemical soup"

of epichlorohydrin, toluene, dimethyl sulfate, among the others

emitted into the Alcolac bioponds over'a span of seven years and

then carried into the air by suds and vapors, could cause a de-

pression of the immune system to persons in the environs. The

actions of these chemicals often induce symptoms which mimic

actual diseases, the witness explained, so that an un trained

local physician will not recognize that the complaints and symp-

toms actually bespeak a depressed immune system toxically induced.

¢ Zahalsky evaluated the immune system of each of the

thirty-one plaintifts. The witness, a research immunologist but

not a clinician, rested the assessments on the laboratory and test

data gathered in the immune panel reports from the Bioscience, KU

and Midwest/Wheeler laboratories. The witness evaluated the

immune system of each plaintiff according to whether the result

for each value tested was within or without a normal reference

range.°? Thus, by the self-evident standard adopted by the expert

3lample toxicological profiles of each of the most toxic chemicals

prominently involved in the Alcolac monomer production process

were rendered by toxicologists Legator, Schwartz and other ex-

perts, as already noted.

32mhe common practice [Zahalsky explained] is for the normal refer-

ence range for each test of the various blood cell populations to

be printed on the face of every test report form. The cell

population values of particular interest to an immune deficiency

evaluation are the: total T cells, the count of helper T cells

(T/4], the count of suppressor T cells [T/8], and the helper/

witness, an abnormality is a test value that falls outside the

normal reference range. Also, by that self-evident standard,

"abnormality is not good." Hence, the conclusion of the witness:

"a laboratory report that fails to list the reference ranges is

invalid by definition." It was, as we note, the perceived unre-

liability of the KU test results expressed in terms of percentages

rather than in terms of reference ranges which prompted witness

Zahalsky to recommend that the subjects undergo a third test

regimen at the Midwest/Wheeler laboratory.

The summary of test results from the Bioscience Labora-

tory noted at least one abnormality, and as many as eight, in the

immune system of every plaintiff.

The test results for every plaintiff from the KU labora-

tory, expressed in terms of percentages, were interpolated by the

witness through the reference ranges of the Midwest/Wheeler forms

into determinations of normal, abnormal and marginal. The KU

protocol [as did the Midwest/Wheeler tests] encompassed total T

cells, helper cells [T/4], suppressor cells [T/8], natural killer

cells and other populations. Zahalsky deemed that the most sig-

nificant test result components were the helper cell [T/4] and

Suppressor ratio, the mature B cell count and the natural killer

cell count - among others. The normal range for each of these

values - as is the common laboratory practice - is printed on the

face of each of the Midwest/Wheeler test report forms. These

ranges are derived from the most current immunologic literature

and from other authoritative sources - such as Eli Lilly "Medi-

facts" and the Smith-Kline Labs. The witness verified that the

reference ranges adopted by the Midwest/Wheeler report form were

"right in line” with the norms published in the professional

reference source, Diagnostic Immunology.

The results of the KU immune panels, Zahalsky testified, not only

expressed results in terms of percentages rather in terms of

normal reference ranges, but they also failed to report the

results-in terms of absolute numbers. Thus, as the Midwest/

Wheeler test for plaintiff Carl Berry reports, the total T cell

count for each unit of blood was 1,045 cells. That datum, as

well as other such values essential to a determination of immune

deficiency, is lacking in the KU panel of tests.

suppressor cell [T/8] counts. The test result associated with the

chemical AIDS condition, Zahalsky noted, was an abnormal helper

cell [T/4] count. In the case of plaintiff Carl Berry, the KU

test disclosed a T/4 count fully five percentage points above the

average - an abnormality. In the case of Virgil Bradley, the

transposed test results disclosed four abnormalities. Of the

twenty-one plaintiffs tested under the KU protocol, the transposed

results established that the blood cell population of only one -

Joy Sommers, age 15 - displayed no immune system abnormality. The

composite tests disclosed 39 abnormalities of the T cells distrib-

uted among the 24 persons tested.

The results from the Midwest/Wheeler Laboratory estab-

lished that 19 of the 24 plaintiffs who presented themselves for

tests suffered from dysfunction of the immune system. The witness

explained that since the T cell population, as an absolute number,

changes with age, to enable valid analysis of dysfunction, he

segregated the plaintiffs into three age groups -the young, the

intermediates, and the older. The tests of fourteen among the

plaintiff groups disclosed the condition of hypo-dysfunction -

that is, a depression in the total number of T cells. The tests

of five among them disclosed the condition of hyper-dysfunction -

that is, an elevation in the total number of T cells. Thus, 79%

of the plaintiffs tested by the Midwest/Wheeler Laboratory dis-

played an immune dysfunction of the T cell compartment. The

immunologist deemed the finding "tremendously statistically sig-

nificant." To this number the witness then added the six members

of the Turley family group who were not available for the Mid-

west/Wheeler regimen and Mary Landon by then under treatment for

cancer. All of them were earlier tested at the Bioscience labora-

tory and demonstrated immune dysfunctions. Thus, the combined

Bloscience-Midwest/Wheeler immune panel tests established that 26

out of the 31 plaintiffs, or 84% of the total number, demonstrated

an immune dysfunction. The witness described that statistic "an

astounding value." -

The Midwest/Wheeler immune panel tests included a newly

available procedure administered at the direction of immunologist

Zahalsky. It was for the T cell monoclonal antibody, HNK-l. That

antibody not only detects the natural killers of the T/4 popula-

tion but also suppressors not found in that population. Ten out

of the 24 plaintiffs had significantly elevated values in HNK-1l,

and one person had a reduced count. Four among the plaintiffs

tested? not only displayed elevated levels of HNK-l, but also

elevated levels of T/8 suppressor cells. Those values indicated

to the expert a gross distortion in the ratio between the helper

cells and the suppressor cells - an indication that the immune

System balance is "out of whack." They already suffer severe

immune dysfunction, the condition of chemically induced AIDS.

Eight others>4 already suffer moderate immune dysfunction, although

not yet the condition of chemically induced AIDS. The changes in

the immune system panels, however, are progressive so that the

dysfunctions will develop to the AIDS condition "Somewhere down

the line."

The dysfunctions of the immune panels as trends in

progress were demonstrated by the results from the Bioscience and

the Midwest/wWheeler laboratories - the two tests the witness

deemed reliable. The Bioscience test conducted in August of 1984

reported one abnormality of the immune system for Arnold Sommers.

The Midwest/Wheeler test conducted in July of 1985 listed two

abnormalities. The progression for Dorothy Bradley listed by

—— ee ee ee ee ee ee ee ee ee ee ae oe

33Virgil Bradley, Dorothy Bradley, Malva Gehlken and Dainie

Landon.

34amber Cross, Gwendolyn Lawrence, Joyce Pryor, John Phillips,

Arnold Sommers, Joyce Sommers, Joy Sommers and Genevieve Withers.

those tests within that interim were from one abnormality to

three, and for Virgil Bradley, fr

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