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Sherwin-Williams Site Cleanup Suit Dismissed

Tuesday, August 28, 2018

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Almost exactly a year after it was filed, a class-action lawsuit that sought damages and medical testing for neighbors of the so-called “Sherwin-Williams sites,” EPA-designated Superfund cleanup sites in New Jersey, has been dismissed by a federal judge.

The suit, filed Aug. 22, 2017, sought compensatory and punitive damages, medical testing for residents near the sites and compensation for loss of property value from The Sherwin-Williams Company, which manufactured paints and varnishes on the sites in Gibbsboro and Voorhees Township, near Camden.

Sherwin-Williams sites map
U.S. EPA

The former Sherwin-Williams site subject to cleanup has been separated into three sites: The Sherwin-Williams/Hillard's Creek site, the Route 561 Dump site and the United States Avenue Burn site.

Plaintiffs argued that, while the sites have been part of the Environmental Protection Agency’s Superfund priorities list since 2008 and cleanup efforts have taken place on and off for nearly 40 years, they did not fully understand the extent of the contamination in the area until an EPA meeting in the area brought the “delayed and/or non-existent cleanup efforts” to their attention.

Two of the plaintiffs in the suit were Gibbsboro residents with minor children who have been diagnosed with cancer, and another was an adult who previously lived in Gibbsboro and has been diagnosed with cancer. One was a former 20-year resident of Gibbsboro who has been diagnosed with a learning disability, and another said she walked in the area of the site three times weekly for about three years, during which time she was diagnosed with kidney disease.

About the Sites

The plant, originally run by John Lucas & Co. and used in manufacturing since the mid-19th century, was bought by Sherwin-Williams in the 1930s and continued to operate until 1978. Sherwin-Williams sold the property in 1981 and no longer operates a manufacturing facility in the vicinity. The site is now three separate Superfund sites: The Sherwin-Williams/Hilliard’s Creek site, the Route 561 Dump site and the United States Avenue Burn site.

Superfund site
© 2018 Google Inc., via Google Maps

The site where the paint manufacturing plant once stood is now a commercial development.

According to the suit, as early as 1975, the New Jersey Department of Environmental Protection alerted Sherwin-Williams that samples of groundwater around the sites showed levels of hazardous chemicals, including barium, lead, arsenic and phenol, and exceeded state and federal maximum levels. In the decades after the facility was closed in 1978, the suit notes a number of instances in which sediment and groundwater samples turned up dangerous levels of toxic substances.

In addition to lead and heavy metals like cadmium, the plaintiffs said the sites are contaminated with beryllium, arsenic, benzene and a number of other known human carcinogens. They noted that there has never been a cancer assessment for Gibbsboro, but said that “upon information and belief, cancer continues to threaten the lives of so many residents and others spending substantial periods of time in the area.”

The Judge’s Ruling

Judge Robert B. Kugler said in his opinion that Sherwin-Williams is indisputably complying with EPA direction regarding the sites as part of its Superfund cleanup efforts, and therefore “federal law bars any claims premised upon improper remediation.” If the EPA is overseeing cleanup, claims of improper remediation would be directed toward the agency, not to the company cooperating with the agency’s plan.

Kugler also ruled that the request for medical surveillance damages could not proceed because the plaintiffs made only “sweeping claims of ‘latent disease’” and could not reasonably show that exposure “caused a distinctive increased risk of future injury.” The plaintiffs did not show in their complaint how medical surveillance would work specifically and how it would “actually protect them,” the judge ruled.

Because the individuals affected by contamination on and around the sites would be affected differently depending on how close they live and work to the sites and how they interact with the environment, the judge ruled that a uniform class for the class-action suit could not reasonably be established. “Plaintiffs are essentially asking this Court to greenlight a Class Area defined as anywhere there is contamination. This Court declines to do so,” the judge’s ruling explains.

A Sherwin-Williams spokesperson declined comment on the ruling; the company has said in the past that it “is committed to implementing a site remediation program that is protective of human health and the environment, in compliance with legal and regulatory requirements, and responsive to stakeholder input.”

Remedial action began at the sites in 2016 with Sherwin-Williams undertaking the project with guidance from the EPA.

   

Tagged categories: Coatings manufacturers; Environmental Protection; Environmental Protection Agency (EPA); Lawsuits

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